[Senate Report 115-30]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 39
115th Congress    }                                      {      Report
                                 SENATE
 1st Session      }                                      {      115-30
_______________________________________________________________________


                          FOLLOW THE RULES ACT

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 576

        TO AMEND TITLE 5, UNITED STATES CODE, TO EXTEND CERTAIN
   PROTECTIONS AGAINST PROHIBITED PERSONNEL PRACTICES, AND FOR OTHER 
                                PURPOSES

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                 April 24, 2017.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

69-010                         WASHINGTON : 2017                  
                 
                 
                 
                 
                 
                 
                 
                 
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                       Courtney J. Allen, Counsel
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk















                                                       Calendar No. 39
115th Congress    }                                      {      Report
                                 SENATE
 1st Session      }                                      {      115-30

======================================================================



 
                          FOLLOW THE RULES ACT

                                _______
                                

                 April 24, 2017.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 576]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 576) to amend title 
5, United States Code, to extend certain protections against 
prohibited personnel practices, and for other purposes, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................4
 VI. Congressional Budget Office Cost Estimate........................4
VII. Changes in Existing Law Made by the Bill, as Reported............5

                         I. Purpose and Summary

    The purpose of S. 576, the Follow the Rules Act, is to 
protect Federal employees from retaliation for refusing to obey 
an order that would violate a rule or regulation.

              II. Background and the Need for Legislation

    This legislation arises in response to a recent decision in 
Federal court interpreting the scope of a provision within the 
Whistleblower Protection Act, commonly referred to as the 
``right-to-disobey'' provision. The ``right to disobey'' 
provision protects Federal employees from retaliation ``for 
refusing to obey an order that would require the individual to 
violate a law.''\1\
---------------------------------------------------------------------------
    \1\Whistleblower Protection Act of 1989, Sec. 4(b), Pub. L. No. 
101-12, 103 Stat. 16. (1989). See also 5 U.S.C. Sec. 2302(b)(9)(D).
---------------------------------------------------------------------------
    The United States Court of Appeals for the Federal Circuit 
was asked to interpret the scope of that provision recently in 
Rainey v. Merit Systems Protection Board.\2\ In Rainey, Doctor 
Timothy Allen Rainey, a Federal employee serving as a 
contracting officer representative for the United States 
Department of State, alleged:
---------------------------------------------------------------------------
    \2\Rainey v. Merit Systems Protection Board, 824 F.3d 1359 (2016).

        [T]hat his duties as a contracting officer 
        representative had been taken away because he had 
        refused his supervisor's order to tell a contractor to 
        rehire a terminated subcontractor. Dr. Rainey argued 
        that his refusal was based on his view that carrying 
        out the order would have required him to violate 
        Federal Acquisition Regulation . . . by improperly 
        interfering with personnel decisions of a prime 
        contractor and requiring the prime contractor to 
        operate in conflict with the terms of the contract.\3\
---------------------------------------------------------------------------
    \3\Id. at 2.

    The Federal Circuit held that the ``right-to-disobey'' 
provision in the Whistleblower Protection Act ``is limited to 
orders that are contrary to a statute, and does not encompass 
orders that are contrary to a regulation.''\4\ As a result, the 
Court ruled against Dr. Rainey, finding that the agency was 
justified in its actions against Dr. Rainey.
---------------------------------------------------------------------------
    \4\Id. at 11.
---------------------------------------------------------------------------
    In limiting the ``right-to-disobey'' provision, the Federal 
Circuit relied on a 2015 Supreme Court case, Department of 
Homeland Security v. MacLean.\5\ In that case, the Court was 
interpreting the ``right-to-disclose'' provision of the Civil 
Service Reform Act of 1978, which prohibits agencies from 
retaliating against a Federal employee who discloses an alleged 
``violation of any law, rule, or regulation, or mismanagement, 
a gross waste of funds . . .'' so long as ``such disclosure is 
not specifically prohibited by law.''\6\
---------------------------------------------------------------------------
    \5\Dep't of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015).
    \6\5 U.S.C. Sec. 2302(b)(8)(A); MacLean, 135 S. Ct. at 915 
(emphasis added).
---------------------------------------------------------------------------
    The Court reasoned that ``Congress's choice to say 
specifically prohibited by law' rather than specifically 
prohibited by law, rule, or regulation' suggests that Congress 
meant to exclude rules and regulations.''\7\ Accordingly, the 
Court held that the limit on lawful disclosure applied only to 
a statute that would prohibit the disclosure, and not to a rule 
or regulation.\8\
---------------------------------------------------------------------------
    \7\MacLean, 135 S. Ct. at 919.
    \8\Id. at 921.
---------------------------------------------------------------------------
    As part of its findings in the Whistleblower Protection 
Act, Congress wrote that ``protecting employees who disclose 
Government illegality, waste, and corruption is a major step 
toward a more effective civil service.''\9\ This Committee 
takes very seriously its responsibility to ensure 
whistleblowers who report allegations of waste, fraud, abuse, 
and wrongdoing are protected from retaliation.
---------------------------------------------------------------------------
    \9\Whistleblower Protection Act of 1989, Sec. 2(a)(2), Pub. L. No. 
101-12, 103 Stat. 16. (1989).
---------------------------------------------------------------------------
    In the 114th Congress, this Committee heard from numerous 
Federal whistleblowers who testified regarding Federal agency 
retaliation against employees who disclose misconduct, waste, 
fraud, and abuse.\10\ The majority staff for the Committee also 
issued a 359-page report about its investigation into 
systematic failures at the Tomah Veterans Affairs Medical 
Center, detailing the culture of fear and whistleblower 
retaliation at the facility\11\ and heard from Federal 
employees who contacted the Committee through the Chairman's 
whistleblower hotline. In both the 114th and 115th Congresses, 
the Committee passed bipartisan legislation to strengthen 
whistleblower protection laws and to reauthorize the Office of 
Special Counsel, the Federal agency charged with investigating 
and redressing Federal employee whistleblower retaliation 
claims.\12\
---------------------------------------------------------------------------
    \10\Blowing the Whistle on Retaliation: Accounts of Current and 
Formers Federal Agency Whistleblowers: Hearing Before the S. Comm. on 
Homeland Sec. & Governmental Affairs, 114th Cong. (2015). See also 
Improving VA Accountability: Examining First-Hand Accounts of 
Department of Veterans Affairs Whistleblowers: Hearing Before the S. 
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015). See 
also Joint Field Hearing: Tomah VAMC: Examining Quality, Access, and a 
Culture of Overreliance on High-Risk Medications, Hearing Before the H. 
Comm. on Veterans' Affairs and the S. Comm. on Homeland Sec. & 
Governmental Affairs, 114th Cong. (2015).
    \11\Majority Staff Report, S. Comm. on Homeland Sec. & Governmental 
Affairs, The Systematic Failures and Preventable Tragedies at the Tomah 
VA Medical Center, 114th Cong. (2016).
    \12\S. 582, 115th Cong. (2017); S. 585, 115th Cong. (2017); A bill 
to enhance whistleblower protection for contractor and grantee 
employees, Pub. L. No. 114-261 (2016).
---------------------------------------------------------------------------
    The Committee believes that refusing to obey any order that 
would violate a law, rule, or regulation, or that a Federal 
employee reasonably believes would violate a law, rule, or 
regulation, is precisely the type of action from which Federal 
employees should be protected against retaliation. The Follow 
the Rules Act would ensure that Federal employees are protected 
in these circumstances.

                        III. Legislative History

    S. 576, the Follow the Rules Act, was introduced on March 
8, 2017, by Chairman Ron Johnson, Ranking Member Claire 
McCaskill, and Senators Chuck Grassley and Tammy Baldwin. 
Senator Ron Wyden joined as a cosponsor on March 21, 2017. The 
bill was referred to the Committee on Homeland Security and 
Governmental Affairs.
    The Committee considered S. 576 at a business meeting on 
March 15, 2017. No amendments were offered. The legislation was 
passed by voice vote en bloc with Senators Johnson, Portman, 
Lankford, Daines, McCaskill, Carper, Tester, Heitkamp, Peters, 
Hassan, and Harris present.

        IV. Section-by-Section Analysis of the Bill, as Reported


Section 1. Short title

    This section establishes the short title of the bill as the 
``Follow the Rules Act.''

Section 2. Prohibited personnel action based on ordering individual to 
        violate rule or regulation

    This section makes it a prohibited personnel practice to 
take, fail to take, or threaten a personnel action against a 
Federal employee because the Federal employee refused to obey 
an order that would violate a law, rule or regulation.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                    March 21, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 576, the Follow the 
Rules 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.

S. 576--Follow the Rules Act

    S. 576 would expand the protections against retaliation 
that are currently given to whistleblowers that refuse to 
violate federal laws. Under the bill those protections would be 
extended to employees who refuse to violate federal rules and 
regulations.
    The Merit Systems Protection Board (MSPB) hears claims 
against federal agencies brought by whistleblowers. Expanding 
the scope of the retaliation protections to include violations 
of federal rules and regulations could increase the number of 
such hearings and related costs. However, based on information 
from the MSPB on the likely number of new cases under the bill, 
CBO expects that whistleblower cases dealing with violations of 
rules and regulations would be limited in number. Furthermore, 
based on an analysis of the cost of whistleblower cases, even 
if the number of cases increased by 20 percent (something CBO 
thinks would be unlikely) under the bill, CBO estimates that 
the annual cost to process them would be less than $500,000.
    Enacting the legislation could affect direct spending by 
agencies not funded through annual appropriations; therefore, 
pay-as-you-go procedures apply. However, CBO estimates that any 
net increase in spending by those agencies would be negligible. 
Enacting S. 576 would not affect revenues.
    CBO estimates that enacting S. 576 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 576 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On February 13, 2017, CBO transmitted an estimate for H.R. 
657, the Follow the Rules Act, as ordered reported by the House 
Committee on Oversight and Government Reform on February 2, 
2017. The two pieces of legislation are similar, and CBO's 
estimates of the budgetary effects are the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *


TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *


Subpart A--General Provisions

           *       *       *       *       *       *       *


CHAPTER 23--MERIT SYSTEMS PRINCIPLES

           *       *       *       *       *       *       *



SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

    (a) * * *
    (b) * * *
          (1) * * *

           *       *       *       *       *       *       *

          (9) * * *
                  (A) * * *
                  (B) * * *
                  (C) * * *
                  (D) for refusing to obey an order that would 
                require the individual to violate a law, rule, 
                or regulation;

           *       *       *       *       *       *       *


                                  [all]