[Senate Report 115-44]
[From the U.S. Government Publishing Office]
Calendar No. 57
115th Congress ] [ Report
1st Session ] SENATE [ 115-44
_______________________________________________________________________
DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION ACT OF 2017
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
S. 585
TO PROVIDE GREATER WHISTLEBLOWER PROTECTIONS FOR
FEDERAL EMPLOYEES, INCREASED AWARENESS OF FEDERAL
WHISTLEBLOWER PROTECTIONS, AND INCREASED
ACCOUNTABILITY AND REQUIRED DISCIPLINE FOR FEDERAL
SUPERVISORS WHO RETALIATE AGAINST WHISTLEBLOWERS, AND
FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
May 4, 2017.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
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
Kyle P. Brosnan, 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. 57
115th Congress ] [ Report
SENATE
1st Session ] [ 115-44
======================================================================
DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION ACT OF 2017
_______
May 4, 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. 585]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 585) to provide
greater whistleblower protections for Federal employees,
increased awareness of Federal whistleblower protections, and
increased accountability and required discipline for Federal
supervisors who retaliate against whistleblowers, and for other
purposes, reports favorably thereon with amendments and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History.............................................10
IV. Section-by-Section Analysis.....................................10
V. Evaluation of Regulatory Impact.................................12
VI. Congressional Budget Office Cost Estimate.......................12
VII. Changes in Existing Law Made by the Bill, as Reported...........13
I. Purpose and Summary
S. 585, the Dr. Chris Kirkpatrick Whistleblower Protection
Act of 2017, provides additional protections to Federal
employees who are retaliated against for disclosing waste,
fraud, or abuse in the Federal Government. Additionally, the
bill directs the Department of Veterans Affairs (VA) to address
agency-specific gaps in its protection of VA employees,
including VA employees' privacy interest in their medical
records and their personal safety.
The legislation is named in honor of Dr. Chris Kirkpatrick,
a whistleblower who questioned excessive prescription practices
at the VA Medical Center in Tomah, Wisconsin (Tomah VAMC). Dr.
Kirkpatrick took his own life after being fired from the Tomah
VAMC.\1\
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\1\On December 9, 2015, the Committee approved S. 2127, the Dr.
Chris Kirkpatrick Whistleblower Protection Act of 2015. That bill is
substantially similar to S. 585, and has been modified only slightly.
Accordingly, this committee report is in large part a reproduction of
Chairman Johnson's committee report for S. 2127, S. Rep. No. 114-262
(2016).
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II. Background and the Need for Legislation
The Committee has a history of working on a bipartisan
basis to protect Federal whistleblowers that come forward to
report waste, fraud, and abuse, who seek the protections of the
Whistleblower Protection Act. This work has led to legislation
to address gaps or weaknesses in current law.\2\ In 2012, for
example, the Committee unanimously reported out, Congress
passed, and President Obama signed, the Whistleblower
Protection Enhancement Act of 2012 (WPEA).\3\ The WPEA
bolstered whistleblower rights by broadening the scope of what
constitutes a ``disclosure'' of waste, fraud, and abuse by
civilian government employees to any relevant entity, including
Congress.\4\
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\2\Blowing the Whistle on Retaliation: Accounts of Current and
Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 114th Cong. (2015) (statement of
Thomas M. Devine, Legal Director, Government Accountability Project)
(``This committee long has played a leadership role in enacting
legislation to protect whistleblowers.''), available at http://
www.hsgac.senate.gov/hearings/blowing-the-whistle-on-retaliation-
accounts-of-current-and-former-federal-agency-whistleblowers
[hereinafter ``Blowing the Whistle''].
\3\Pub. L. No. 112-199 (112th Cong.) (2012).
\4\Id.
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Despite the progress Congress and this Committee have made
in the years since the Whistleblower Protection Act was first
passed in 1989, whistleblowers too often face retaliation for
disclosing waste, fraud and abuse. As the legal director for
the Government Accountability Project put it in testimony
before the Committee in June 2015: ``retaliation for
challenging abuses of power always has and always will occur .
. . . Further, the imperative is permanent to make a negative
example out of every whistleblower's life, to scare others into
silence.''\5\
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\5\Blowing the Whistle at 3 (statement of Thomas M. Devine, Legal
Director, Government Accountability Project).
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It is a priority of this Committee to examine the root and
contributing causes of whistleblower retaliation through
investigations, hearings, and other oversight, and to identify
ways in which gaps or weaknesses in current law can be
addressed through legislation. In the 114th Congress, this
Committee held multiple hearings where members heard the first-
hand accounts of the hardships whistleblowers across the
federal government face when they report wrongdoing.\6\ These
hearings and additional oversight work in the 114th Congress
helped inform the Committee's legislative efforts. Because of
this work, the Committee was able to report favorably multiple
pieces of legislation that provided additional whistleblower
protections for federal employees,\7\ one of which was signed
into law.\8\
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\6\See, e.g., Blowing the Whistle on Retaliation: Accounts of
Current and Former 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).
\7\See, e.g., S. 2127, Dr. Chris Kirkpatrick Whistleblower
Protection Act of 2015, 114th Cong. (2015); S. 2968, Office of Special
Counsel Reauthorization Act of 2016, 114th Cong. (2016).
\8\A bill to enhance whistleblower protection for contractor and
grantee employees, Pub. L. No. 114-261 (114th Cong.) (2015).
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Increased cases alleging retaliation against whistleblowers
Retaliation against whistleblowers has been particularly
concerning in recent years at the VA. The Office of Special
Counsel (OSC), the Federal agency charged with investigating
and redressing whistleblower retaliation, ``has seen a sharp
increase in the number of whistleblower cases from VA
employees.''\9\ Special Counsel Carolyn Lerner has publicly
questioned the VA's handling of whistleblower complaints,
stating that ``it is clear that the workplace culture in many
VA facilities is hostile to whistleblowers and actively
discourages them from coming forward with what is often
critical information.''\10\ VA cases averaged only 20 percent
of all OSC cases in 2009, 2010, and 2011.\11\ As of September
2015, the proportion of prohibited personnel practice
complaints made to OSC by VA employees was approximately 35
percent of all the complaints received by OSC across the
Federal Government.\12\ To put this number in context, 2014 was
the first year on record that cases filed with OSC by VA
employees surpassed those by Department of Defense (DoD)
employees, despite the fact that the DoD has two times more
civilian employees than the VA.\13\ The recent increase of
whistleblower complaints coming from the VA has forced OSC to
reallocate staff and resources and prioritize VA cases through
an expedited review process.\14\
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\9\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)
(statement of Carolyn Lerner, Special Counsel, Office of Special
Counsel), available at http://www.hsgac.senate.gov/hearings/improving-
va-accountability-examining-first-hand-accounts-of-department-of-
veterans-affairs-whistleblowers [hereinafter ``Improving VA
Accountability''].
\10\Id.
\11\Addressing Continued Whistleblower Retaliation Within VA:
Hearing Before Comm. on Veterans' Affairs, Subcomm. On Oversight &
Investigations 1, 114th Cong. (2015) (statement of Carolyn Lerner,
Special Counsel, Office of Special Counsel), available at http://
veterans.house.gov/hearing/addressing-continued-whistleblower-
retaliation-within-va [hereinafter ``Addressing Continued Whistleblower
Retaliation Within VA''].
\12\Improving VA Accountability at 2 (statement of Carolyn Lerner,
Special Counsel, Office of Special Counsel).
\13\Id. at 1.
\14\Id. at 2.
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The most troubling sign of the VA's treatment of
whistleblowers comes from the way it has reacted to damaging
information in some situations--by first questioning the
individual who made the disclosure rather than investigating
the allegation the individual raised.\15\ According to Special
Counsel Lerner, there are two problems with this approach: the
VA problems are glossed over, and the VA employees fear that
``their own actions will come under intense scrutiny'' if they
speak up.\16\
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\15\Id. at 6-7; Addressing Continued Whistleblower Retaliation
Within VA 7 (statement of Carolyn Lerner, Special Counsel, Office of
Special Counsel).
\16\Id.
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In a September 2015 Committee hearing titled Improving VA
Accountability: Examining First-Hand Accounts of Department of
Veterans Affairs Whistleblowers, the Committee invited several
VA whistleblowers to come in and tell their stories to
``illustrate the wide variety of challenges and hardships
whistleblowers face when they come forward to report
wrongdoing.''\17\ The hearing followed a March 2015 Committee
hearing revealing the tragic events at the Tomah VAMC, where
two separate whistleblowers--Dr. Noelle Johnson and Ryan Honl--
testified about how they blew the whistle on over-medication at
the facility, and how their warnings were received by the VA
with punishment, rather than reform.\18\
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\17\Improving VA Accountability at 1 (opening statement of Senator
Ron Johnson).
\18\Tomah VAMC: Examining Quality, Access, and a Culture of
Overreliance on High-Risk Medications: Joint Field Hearing Before the
Comm. of Homeland Security & Governmental Affairs and the H. Comm. on
Veterans' Affairs, 114th Cong. (2015), available at http://
www.hsgac.senate.gov/hearings/joint-field-hearing-tomah-vamc-examining-
quality-access-and-a-culture-of-overreliance-on-high-risk-medications
[hereinafter, Tomah VAMC Hearing].
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One of the individuals who testified at the September 2015
hearing was Sean Kirkpatrick on behalf of his deceased brother,
Dr. Chris Kirkpatrick. Dr. Kirkpatrick was a clinical
psychologist at the Tomah VAMC who came forward to his union
representative about his concerns that the Tomah VAMC was
overprescribing medication.\19\ A majority staff report issued
on May 31, 2016, found that in 2009--and perhaps as far back as
2004--employees at the Tomah VAMC ``referred to the facility as
`Candy Land' and to one doctor in particular, Dr. David
Houlihan, as the `Candy Man.'''\20\ Employees at the facility
reported that patients used these terms because Dr. Houlihan
prescribed large quantities of narcotics.\21\ So large, in
fact, that some Tomah VAMC pharmacists refused to prescribe or
fill large quantities of narcotic prescriptions for Dr.
Houlihan's patients.\22\ In the spring of 2009, a Tomah VAMC
pharmacist and the local union grew concerned about a possible
connection between Dr. Houlihan's proclivity to give out such
large quantities of narcotics and the fact that several of his
patients had ``unexplained'' deaths at this Medical Center.\23\
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\19\Improving VA Accountability at 1-2 (statement of Sean
Kirkpatrick).
\20\Maj. Staff of S. Comm. on Homeland Security and Gov't. Affairs,
The Systemic Failures and Preventable Tragedies at the Tomah VA Medical
Center, vi, 114th Cong. (2016) [hereinafter ``Tomah Report''].
\21\Id. at i.
\22\Id. at 116.
\23\See id. at 29; see also id. at 22-24.
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According to documents obtained by the Committee, around
the same time of rising concerns with Dr. Houlihan's
prescribing methods, Dr. Kirkpatrick reported to his
supervisors and his union representative that he believed some
of his patients were overmedicated.\24\ At the Committee's
hearing on September 22, 2015, Dr. Kirkpatrick's brother
provided further information. He testified that Dr. Kirkpatrick
also complained that he was ``very afraid of Dr. Houlihan'' and
was facing an ``ethical dilemma'' because he had discussed with
a physician assistant the fact that he had concerns about
medication being prescribed, and that the physician assistant
had accused him of inappropriate behavior.\25\ Sean Kirkpatrick
testified that shortly thereafter, Dr. Kirkpatrick received a
written counseling admonishing him for ```educating' patients
about what medications they are on'' and advising him to
``focus on his own work.''\26\ On July 14, 2009, the Tomah VAMC
terminated Dr. Kirkpatrick for ``performance issues.''\27\
Tragically, Dr. Kirkpatrick took his own life later that
evening.\28\ The VA never investigated Dr. Kirkpatrick's
suicide.\29\
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\24\E-mail from Chris Kirkpatrick, Tomah VAMC, to Dianne Streeter
and Linda Ellinghuysen (Apr. 23, 2009), in Juneau Co. Sherriff's Dept.,
Chris Kirkpatrick Death Investigation Report 40, 43 (2009) (on file
with Comm.) [hereinafter ``Chris Kirkpatrick Death Investigation
Report''].
\25\Improving VA Accountability at 2 (statement of Sean
Kirkpatrick).
\26\Id.
\27\Letter from Wayne Davis, Manager, Great Lakes Human Resources
Management Service, to Chris Kirkpatrick (July 14, 2009) (on file with
Comm.).
\28\Chris Kirkpatrick Death Investigation Report.
\29\Letter from Sloan Gibson, Deputy Sec'y, U.S. Dep't of Veterans
Affairs, to Sen. Ron Johnson, Chairman, S. Comm. on Homeland Sec. &
Governmental Affairs (May 29, 2015) (on file with Comm.).
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In his testimony before the Committee, Sean Kirkpatrick
detailed the retaliation he believes his brother experienced in
the wake of his questioning veteran care at the Tomah VAMC.
Sean Kirkpatrick also explained the emotional stress that Dr.
Kirkpatrick had been under at the facility due to ``taking on
so many cases'' without additional help, receiving threats of
violence from one of his patients, and feeling as if he had no
outlet to discuss the emotional stresses of treating veterans
with Post Traumatic Stress Disorder.\30\ Sean Kirkpatrick
suggested nine recommendations for Congress to consider to
reform the way that whistleblowers, and in particular, VA
employees, are treated.\31\ Many of those recommendations are
addressed in this legislation and discussed in further detail
below.
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\30\Improving VA Accountability at 3 (statement of Sean
Kirkpatrick)
\31\Id. at 6-7.
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While retaliation at the VA has captured the public's
attention most recently, retaliation against whistleblowers is
not confined to any one agency. To better understand these
issues across the Federal Government, the Committee held a
hearing in June 2015, titled Blowing the Whistle on
Retaliation: Accounts of Current and Former Federal Agency
Whistleblowers.\32\ Witnesses at the hearing were employees
from the United States Army, Homeland Security Investigations,
the Social Security Administration, and the United States
Customs and Border Protection who testified that they made a
disclosure and believed they experienced retaliation from the
agencies in response, including loss of their job, suspension
of pay, and termination proceedings against them.\33\
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\32\Blowing the Whistle on Retaliation: Accounts of Current and
Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 114th Cong. (2015), available at
http://www.hsgac.senate.gov/hearings/blowing-the-whistle-on-
retaliation-accounts-of-current-and-former-federal-agency-
whistleblowers [hereinafter ``Blowing the Whistle on Retaliation''].
\33\Id.
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Probationary period employees
Some Federal employees serving initial appointments or
being promoted to management in the civil service are required
to serve a period of probation, or temporary appointment,
typically for one year.\34\ This time period allows the agency
to evaluate the employee before the appointment becomes
final.\35\ If the agency decides not to finalize the
appointment, the individual has limited appeal rights and the
agency does not have to go through the same formal procedures
to terminate the employee as it would if the employee's
appointment was finalized, after which dismissing an employee
becomes ``more difficult and time consuming.''\36\
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\34\5 U.S.C. Sec. 3321(a). See also 5 C.F.R. Sec. 315.801-04. Gov't
Accountability Office, GAO-15-191, Federal Workforce: Improved
Supervision and Better Use of Probationary Periods Are Needed to
Address Substandard Employee Performance 10 (2015).
\35\Id.
\36\Gov't Accountability Office, GAO-15-191, Federal Workforce:
Improved Supervision and Better Use of Probationary Periods Are Needed
to Address Substandard Employee Performance 11 (2015). See also 5
C.F.R. Sec. 315.806.
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While probationary periods serve a very important function
in the civil service, they have the potential to be used as a
tool by managers to retaliate against whistleblowers, since
during this time an employee may feel less free to speak up
about abuses. Accordingly, the Committee believes it is useful
to have an independent review of claims of retaliation against
employees serving in a probationary status to ensure such abuse
is not occurring.
Probationary period employees should feel safe to make a
protected disclosure to their agency, agency Inspector General,
or OSC, despite the fact that they are just starting out in
Federal service. One way to encourage employees to speak up is
to ensure that, if they are retaliated against for a
disclosure, they have the right to request a transfer to
another position while their investigation is underway and the
agency should prioritize that request. Getting an employee out
of their immediate management structure while their demotion,
termination, or other personnel action is stayed can give the
employee the time and peace of mind to fight the action.
Lack of accountability
``Every academic or government study has concluded that the
primary motivating, or chilling factor for would-be
whistleblowers is whether they can make a difference by bearing
witness.''\37\ Unfortunately, in 2016 only sixty-two percent of
Federal employees that responded to an Office of Personnel
Management survey seeking Federal employee viewpoints on a
variety of topics reported that they believed they could blow
the whistle on a potential violation of any law, rule, or
regulation without facing reprisal.\38\
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\37\Blowing the Whistle on Retaliation (statement of Thomas M.
Devine, Legal Director, Government Accountability Project).
\38\Office of Personnel Mgmt., Federal Employee Viewpoint Survey
Results, Governmentwide Management Report 38 (2016) available at
https://www.fedview.opm.gov/2016FILES/2016_FEVS_Gwide_Final_Report.PDF.
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OSC has also raised concerns about the inconsistent use of
discipline against those whose wrongdoing is exposed by
whistleblowers at the VA. In testimony before this Committee,
Special Counsel Lerner noted numerous examples of the VA
failing to discipline officials found responsible for posing
significant risks to public health and safety or engaging in
other misconduct.\39\ Special Counsel Lerner added that this
lack of discipline ``stand[s] in stark contrast to disciplinary
actions taken against VA whistleblowers . . . for minor
indiscretions or for activity directly related to the
employee's whistleblowing.''\40\
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\39\Improving VA Accountability 5-6 (statement of Carolyn Lerner,
Special Counsel, Office of Special Counsel).
\40\Id. at 6.
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The Veterans Access, Choice and Accountability Act of
2014,\41\ as amended by the Department of Veterans Affairs
Expiring Authorities Act of 2014,\42\ commissioned an
``independent assessment of 12 areas of VA's health care
delivery systems and management processes.''\43\ The study
found, in part, that the Veterans Health Administration (VHA)
has been ``plagued by many problems: growing bureaucracy,
leadership and staffing challenges, and unsustainable
trajectory of capital costs.''\44\ In addition, the study found
``a misalignment of accountability and authority exists within
a broader VHA culture characterized by risk aversion and lack
of trust.''\45\ To ensure accountability throughout the Federal
Government, S. 585 outlines mandatory disciplinary procedures
for managers that are found to have retaliated against
whistleblowers.
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\41\Pub. L. No. 113-146 (113th Cong.).
\42\Pub. L. No. 113-175 (113th Cong.).
\43\Independent Assessment of the Health Care Delivery Systems and
Management Processes of the Department of Veterans Affairs, Volume I:
Integrated Report iii (2015), available at http://www.va.gov/opa/
choiceact/documents/assessments/Integrated_Report.pdf.
\44\Id. at xii.
\45\Id. at xvi.
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This ``misalignment'' was all the more visible in the
aftermath of the VA manipulated-wait-time scandal. Following
the wait-time scandal, Congress passed the Veterans Access,
Choice and Accountability Act of 2014 (Choice Act).\46\ The
Choice Act authorized the Secretary of the VA to seek the
removal or transfer of Senior Executives based on poor
performance or misconduct. To date, the VA has used its
authority to remove only six senior executives.\47\ On May 31,
2016, Attorney General Lynch informed the Senate Legal Counsel
that the Justice Department would no longer enforce the removal
provisions of the Choice Act, arguing that they are
``inconsistent with the Appointments Clause'' of the
Constitution.\48\ In addition, previous VA leadership
vigorously opposed congressional efforts to enact additional
accountability measures on non-senior executive VA
employees.\49\
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\46\Veterans Access, Choice, and Accountability Act of 2014, Pub.
L. No. 113-146, 128 Stat. 1754 (2014).
\47\Tomah VAMC: Examining Patient Care and Abuse of Authority:
Hearing Before the S. Comm. on Homeland Sec. and Gov't Affairs, 114th
Cong. (2016) (statements of Hon. Sloan Gibson, Deputy Sec'y, Veterans
Health Admin., Dep't of Veterans Affairs, post-hearing questions for
the record), on file with Comm.
\48\Letter from Loretta Lynch, Attorney General, U.S. Dep't of
Justice, to Patricia Bryan, Senate Legal Counsel, U.S. Senate (May 31,
2016), available at http://1yxsm73j7aop3quc9y5ifaw3.wpengine.netdna-
cdn.com/wp-content/uploads/2016/06/helman_v_VA.pdf; see also Nicole
Ogrysko, DoJ Says Key VA Choice Provisions for SES Appeals is
Unconstitutional, Federal News Radio (June 3, 2016, 10:25 AM), http://
federalnewsradio.com/workforce-rightsgovernance/2016/06/doj-says-key-
va-choice-provision-ses-appeals-unconstitutional/
\49\Pending Health Care and Benefits Legislation Before S. Comm. on
Veterans' Affairs, 114th Cong. (2015) (statements of Dr. Rajiv Jain,
Assistant Deputy Under Sec'y for Health for Patient Care Sers.,
Veterans Health Admin.), available at http://www.veterans.senate.gov/
imo/media/doc/VHA%20Jain%20Testimony%206.24.15.pdf.
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In addition to ensuring consistent discipline, it is
crucial that employees know their rights and that supervisors
and managers have training on how to address protected
disclosures and allegations of retaliation. Current law
requires that agencies keep their workforce informed about the
rights and remedies available to them to prevent prohibited
personnel practices, including how to make a disclosure.\50\ To
help agencies meet this obligation, OSC provides a
certification program that walks the agency through simple
steps such as placing informational posters at agency
facilities, providing information to new hires, and training
supervisors about prohibited personnel practices.\51\ The
certification program is not statutorily required, but is
mandated under the Administration's National Action Plan on
Open Government.\52\
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\50\5 U.S.C. Sec. 2302(c).
\51\Examining the Administration's Treatment of Whistleblowers:
Hearing Before the Oversight & Gov. Reform Comm. 7, 113th Cong. (2014)
(statement of Carolyn Lerner, Special Counsel, Office of Special
Counsel), available at https://oversight.house.gov/hearing/examining-
administrations-treatment-whistleblowers/.
\52\Id.
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To ensure all agencies are providing this crucial
information to their employees, S. 585 sets a deadline for
agencies to provide their employees with the required
information, and also provides more detail on what type of
information the agency needs to include when it informs its
employees of their general whistleblower rights: (1)
information regarding whistleblower protections available to
new employees during the probationary period; (2) information
about the role of OSC and the MSPB in protecting
whistleblowers; and (3) information about how to make a lawful
disclosure that must be kept classified in the interest of
national security. Additionally, S. 585 requires that
information about employee's whistleblower protections must be
made publicly available through the agency's own website, and
on the agency's internal online portal, if one exists.
Other improvements needed at the VA
The original Whistleblower Protection Act contained twelve
prohibited personnel practices listed in statute that serve to
protect Federal employees, including protection from hiring
violations, discrimination, and retaliation against
whistleblowers.\53\ In the years since the law was passed,
however, changes in agency action have required Congress to
further protect employees by supplementing the list. Through
the WPEA, Congress added a thirteenth prohibited personnel
practice: prohibiting agencies from imposing non-disclosure
agreements on Federal employees that do not explicitly permit
whistleblowing.\54\
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\53\Pub. L. No. 101-12 (101st Cong.) (1989).
\54\Pub. L. No. 112-199 (112th Cong.) (2012).
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Similarly, some agency employees are now skirting the law
and retaliating against whistleblowers in other ``creative''
ways.\55\ One significant concern to this Committee is the
abuse of accessing a whistleblower's medical records. In 2015,
Special Counsel Lerner testified that ``[i]n several cases, the
medical records of whistleblowers have been accessed and
information in those records has apparently been used to
attempt to discredit the whistleblowers.''\56\ At the
Committee's March 2015 field hearing in Tomah, Wisconsin,
whistleblower and Army veteran Ryan Honl testified that Tomah
VAMC employees accessed his medical records despite the fact
that Mr. Honl had never received care at the Tomah VAMC.\57\ In
addition, Brandon Coleman and Shea Wilkes, both veteran VA
employees, testified at the Committee's September 2015 hearing
that their medical records were improperly accessed by VA
officials after they began raising concerns about patient care
at the VA facilities where they worked.\58\ Mr. Wilkes
testified that he has talked with more than 50 whistleblowers
across the country who have had their medical records
accessed.\59\
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\55\Blowing the Whistle on Retaliation (statement of Thomas M.
Devine, Legal Director, Government Accountability Office).
\56\Improving VA Accountability at 7 (statement of Carolyn Lerner,
Special Counsel, Office of Special Counsel).
\57\Tomah VAMC Hearing at 2 (statement of Ryan Honl).
\58\See generally, Improving VA Accountability (statements of
Brandon Coleman, Ph.D. and Shea Wilkes).
\59\Id. (testimony of Shea Wilkes, Licensed Clinical Social Worker,
Overton VA Medical Center).
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The VA may lack proper technological safeguards to ensure
that employees' medical records are shielded from the view of
other employees. According to OSC, non-medical personnel within
the VA have at times accessed the medical files of their
veteran coworkers.\60\ In discussions with OSC staff, OSC has
reported that in some instances, VA employees have claimed that
they accessed another employee's medical record simply to
obtain their address for a valid work-related reason.\61\ There
does not seem to be a valid reason for a VA employee to access
to the medical records of another employee unless they are
treating the individual. It is the Committee's view that in all
other circumstances, if the VA employee is in need of personal
information, such as an address, he or she should obtain that
information through the agency's personnel records system.
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\60\Comm. staff discussions with the Office of Special Counsel
(Nov. 2015).
\61\Id.
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In addition to improper access of medical records, the
Committee has heard testimony of other employee concerns at the
VA, including employee mental health and safety. As stated
above, Dr. Chris Kirkpatrick was a clinical psychologist at the
Tomah VAMC. Dr. Kirkpatrick's brother provided to the Committee
information about Dr. Kirkpatrick's work at Tomah VAMC.
According to Dr. Kirkpatrick's brother, Sean, in his job, Dr.
Kirkpatrick treated veterans dealing with complex, sometimes
combat-related mental illness including post-traumatic stress
disorder (PTSD) and acute stress disorder (ASD).\62\ These
veterans would recount their horrific experiences on the
battlefield to Dr. Kirkpatrick and he would devise treatment
methods to assist those veterans in their recovery.\63\ Sean
Kirkpatrick testified that Dr. Kirkpatrick sometimes felt
overwhelmed by his caseload and the stories he heard and
believed that there should be some sort of support structure in
place for VA professionals to seek mental health services of
their own.\64\ This bill would require the VA to conduct
outreach to its employees to make them more aware of any
available mental health services, including telemedicine
options.
---------------------------------------------------------------------------
\62\Improving VA Accountability (statement of Sean Kirkpatrick).
\63\Id.
\64\Id.
---------------------------------------------------------------------------
Sean Kirkpatrick also testified that a veteran had
threatened Dr. Kirkpatrick at the Tomah VAMC. According to Sean
Kirkpatrick's testimony, Dr. Kirkpatrick reached out to his
union stating that he was concerned for his safety after this
veteran threatened to commit bodily harm to Dr. Kirkpatrick and
his dog.\65\ In an April 20, 2015 letter, Chairman Johnson
inquired about VA protocols for handling threats from patients
to staff and what actions, if any, were taken regarding any
patient that may have threatened Dr. Kirkpatrick.\66\ In
response, the VA stated to Chairman Johnson that the VA Police
Service addresses patient threats and that the Tomah VAMC has a
``Flags Committee to consider risk factors and recommendations
on flagging patients consistent with VHA Directive 2010-053,
Patient Record Flags.''\67\ Specifically regarding the alleged
threat against Dr. Kirkpatrick, the VA stated that Tomah VAMC
was ``not aware of an investigation into threats being made
against Dr. Kirkpatrick by a patient. A review of Dr.
Kirkpatrick's records identified one Veteran as possibly being
the Veteran who may have threatened Dr. Kirkpatrick. However
the Tomah VAMC is not aware of any action taken against this
patient regarding threats against Dr. Kirkpatrick.''\68\ This
bill would require the VA to ensure protocols are in place to
address threats from VA patients against VA employees.
---------------------------------------------------------------------------
\65\Id.
\66\Letter from Ron Johnson, Chairman S. Comm. on Homeland Security
and Governmental Affairs, to Robert McDonald, Secretary, Dep't. of
Veterans Affairs, Apr. 20, 2015.
\67\Letter from Sloan D. Gibson, Deputy Secretary, Dep't of
Veterans Affairs, to Ron Johnson, Chairman, S. Comm. on Homeland
Security and Governmental Affairs, May 29, 2015.
\68\Id.
---------------------------------------------------------------------------
The Committee's investigation of the Tomah VAMC has
discovered other areas for improvement within the VA. In
particular, the investigation has identified potential problems
with the reporting structure of the VA Police Department of the
Tomah VAMC. Sean Kirkpatrick testified that the reporting
structure of the Tomah VA Police Department may haveled to
potential conflicts of interest with hospital leadership and possibly
inhibited the Tomah VA Police Department's law enforcement functions at
the facility.\69\ There is potential that the chain of command
structure for police departments at other VA facilities poses similar
concerns about conflicts of interest with facility management.
Accordingly, S. 585 would require that GAO study the reporting,
staffing, accountability, and chain of command structure of the VA
police officers at their own medical centers.
---------------------------------------------------------------------------
\69\Improving VA Accountability (statement of Sean Kirkpatrick).
---------------------------------------------------------------------------
S. 585 is a culmination of the work this Committee has done
to examine the gaps and weaknesses in current whistleblower
protection laws.\70\ The bill addresses a wide array of the
most pressing problems at the VA and across the Federal
Government relating to retaliation against whistleblowers, and
directs the VA to put in place plans to limit its employees'
unauthorized access to medical records.
---------------------------------------------------------------------------
\70\The version of this bill that the Committee reported favorably
in the 114th Congress (S. 2127, 114th Cong.) contained a provision that
gave the OSC statutory authority for access to documents from Executive
Branch agencies. This bill does not include that provision because the
Committee believes that the Office of Special Counsel Reauthorization
Act of 2017 is the best legislative vehicle to address that issue. See
Office of Special Counsel Reauthorization Act of 2017, S. 582, 115th
Cong. (2017).
---------------------------------------------------------------------------
III. Legislative History
Chairman Ron Johnson (R-WI) introduced S. 585, the Dr.
Chris Kirkpatrick Whistleblower Protection Act of 2017, on
March 8, 2017, with Senator Joni Ernst (R-IA). The bill was
referred to the Committee on Homeland Security and Governmental
Affairs.
The Committee considered S. 585 at a business meeting on
March 15, 2017. No amendments were offered. The bill 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
Sec. 1. Short title; table of contents
This section establishes the short title of the bill as the
``Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017.''
Title I: Employees Generally
Sec. 101. Definitions
This section includes definitions of the term ``agency''
``employee'', and ``personnel action''.
Sec. 102. Stays; probationary employees
Subsections (a) and (b) ensure that if MSPB grants a stay
to an employee under Title 5, Section 1214 or 1221, the
employee can request from their employing agency a transfer,
and that request shall receive priority. Subsection (c)
requires GAO to study federal agency retaliation against
probationary period employees.
Sec. 103. Prohibited personnel practices
This section makes accessing an employees's medical record
in retaliation of an employee engaging in a protected activity
a prohibited personnel practice.
Sec. 104. Discipline of supervisors based on retaliation against
whistleblowers
This section requires the head of each agency to propose
prescribed adverse actions against supervisory employees who
are determined to have committed a prohibited personnel action
against a whistleblower or accessed a medical record in
retaliation for the employee engaging in a protected activity
as described in title 5, Section 2302(b)(8), (9), and the new
(14). The adverse actions that shall be proposed are: for the
first offense, not less than a 3-day suspension plus any
additional supplemental discipline the head of the agency (or
his designee) deems appropriate; and for a second offense,
removal. A determination of the commitment of a prohibited
personnel action must be made by the head of the agency, an
administrative judge, the MSPB, the OSC, an adjudicating body
provided under a union contract, a Federal judge, or the agency
Inspector General. Employees against whom these adverse actions
are proposed would have notice and opportunity to respond and
retain due process rights to appeal the decision to the Merit
System Protections Board.
Sec. 105. Suicide by employees
Subsections (a) and (b) ensure that OSC has the information
it needs to investigate prohibited personnel practices if an
employee commits suicide. OSC would know if someone filed a
complaint with OSC, but not necessarily if they made
disclosures to the agency. These provisions require the agency
to share information with the OSC about a Federal employee who
committed suicide if that employee had, prior to his or her
death, (1) made any protected disclosure, and (2) had a
personnel action taken against him or her by the agency. In
such circumstances, OSC is required to examine whether the
personnel action was taken because of the disclosure and take
appropriate action.
Sec. 106. Training for supervisors
This section requires agencies to provide supervisors
training on responding to complaints alleging a violation of
whistleblower protections available to agency employees.
Sec. 107. Information on whistleblower protections
This section requires agencies to keep their employees
apprised of the rights and remedies available to them if the
agency commits a prohibited personnel practice, including
requiring agencies to post such information on their public and
internal websites.
Title II: Department of Veterans Affairs Employees
Sec. 201. Prevention of unauthorized access to medical records of
employees of the Department of Veterans Affairs
This section requires the VA to formulate a plan for
protecting employees from having their medical records accessed
without authorization. The plan must include how the agency
will use technology to block computer access to records for
those employees who have no need to access such information.
This section will also require Department employees to cease
accessing medical files for demographic information where
another non-medical database is available, which OSC believes
has been an unnecessary invasion of privacy and could be a
pretext for accessing unauthorized files.
Sec. 202. Outreach on availability of mental health services available
to employees of the Department of Veterans Affairs
This section requires the VA to conduct outreach to its
employees to make them more aware of any mental health
services, including telemedicine, that are available to them.
Sec. 203. Protocols to address threats against employees of the
Department of Veterans Affairs
This section requires the VA to ensure protocols are in
place to address threats from VA patients against VA employees.
Sec. 204. Comptroller General of the United States study on
accountability of chiefs of police of Department of Veterans
Affairs medical centers
This section requires GAO to study the reporting, staffing,
accountability, and chain of command structure of the VA police
officers at their own medical centers.
III. 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.
IV. Congressional Budget Office Cost Estimate
May 1, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs,
United States Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 585, the Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Keith Hall.
Enclosure.
S. 585--Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017
S. 585 would require the Government Accountability Office
(GAO) to prepare two reports and would modify several personnel
and administrative procedures at federal agencies--some of
which would be specific to the Department of Veterans Affairs
(VA). CBO estimates that implementing S. 585 would cost $3
million over the 2018-2022 period; that spending would be
subject to the availability of appropriated funds. Enacting S.
585 would not affect direct spending or revenues; therefore,
pay-as-you-go procedures do not apply.
The two reports by GAO would discuss retaliation against
employees on probationary status and assess management and
staffing levels of police officers at VA medical centers. On
the basis of costs for similar reports, CBO estimates that
completing those reports would cost $2 million over the 2018-
2022 period.
Additionally, on the basis of information from VA and the
Office of Special Counsel, CBO expects that individually,
provisions modifying procedures at VA and other federal
agencies would have an insignificant budgetary effect because
they would either largely codify current practice or affect few
people. In total, however, CBO estimates that implementing
those provisions would, in total, cost $1 million over the
2018-2022 period.
CBO estimates that enacting S. 585 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 585 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.
The CBO staff contact for this estimate is Dwayne M.
Wright. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
V. 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 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. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE
ACTION
(a) * * *
(b) * * *
(1) * * *
(A) * * *
* * * * * * *
(E) If the Merit Systems Protections Board
grants a stay under this subsection, the head
of the agency employing the employee shall give
priority to a request for a transfer submitted
by the employee.
* * * * * * *
Subchapter III--Individual Right of Action in Certain Reprisal Cases
* * * * * * *
SEC. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
(a) * * *
* * * * * * *
(k) If the Merit Systems Protection Board grants a stay to
an employee in probationary status under subsection (c), the
head of the agency employing the employee shall give priority
to a request for a transfer submitted by the employee.
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
Subpart A--General Provisions
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
Table of sections
Sec.
2301. Merit systems principles.
2302. Prohibited personnel practices.
2303. Prohibited personnel practices in the Federal Bureau of
Investigation.
2304. Prohibited personnel practices affecting the Transportation
Security Administration.
2305. Responsibilities of the Government Accountability Office.
2306. Coordination with certain other provisions of law.
2307. Information on whistleblower protections.
* * * * * * *
SEC. 2302. PROHIBITED PERSONNEL PRACTICES.
(a) * * *
(b) * * *
(1) * * *
* * * * * * *
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title; [or]
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or agreement
does not contain the following statement: ``These
provisions are consistent with and do not supersede,
conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by existing
statute or Executive order relating to (1) classified
information, (2) communications to Congress, (3) the
reporting to an Inspector General of a violation of any
law, rule, or regulation, or mismanagement, a gross
waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety, or (4)
any other whistleblower protection. The definitions,
requirements, obligations, rights, sanctions, and
liabilities created by controlling Executive orders and
statutory provisions are incorporated into this
agreement and are controlling.''[.] ; or
(14) access the medical record of another employee or
an applicant for employment as a part of, or otherwise
in furtherance of, any conduct described in paragraphs
(1) through (13).
[(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the
rights and remedies available to them under this chapter and
chapter 12 of this title, including how to make a lawful
disclosure of information that is specifically required by law
or Executive order to be kept classified in the interest of
national defense or the conduct of foreign affairs to the
Special Counsel, the Inspector General of an agency, Congress,
or other agency employee designated to receive such
disclosures. Any individual to whom the head of an agency
delegates authority for personnel management, or for any aspect
thereof, shall be similarly responsible within the limits of
the delegation.]
[(d)] (c) This section shall not be construed to extinguish
or lessen any effort to achieve equal employment opportunity
through affirmative action or any right or remedy available to
any employee or applicant for employment in the civil service
under--
(1) section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16), prohibiting discrimination on the
basis of race, color, religion, sex, or national
origin;
(2) sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a),
prohibiting discrimination on the basis of age;
(3) under section 6(d) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 206(d)), prohibiting
discrimination on the basis of sex;
(4) section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), prohibiting discrimination on the basis of
handicapping condition; or
(5) the provisions of any law, rule, or regulation
prohibiting discrimination on the basis of marital
status or political affiliation.
[(e)] (d)
(1) For the purpose of this section, the term
``veterans'' preference requirement'' means any of the
following provisions of law:
(A) Sections 2108, 3305(b), 3309, 3310, 3311,
3312, 3313, 3314, 3315, 3316, 3317(b), 3318,
3320, 3351, 3352, 3363, 3501, 3502(b), 3504,
and 4303(e) and (with respect to a preference
eligible referred to in section 7511(a)(1)(B))
subchapter II of chapter 75 and section 7701.
(B) Sections 943(c)(2) and 1784(c) of title
10.
(C) Section 1308(b) of the Alaska National
Interest Lands Conservation Act.
(D) Section 301(c) of the Foreign Service Act
of 1980.
(E) Sections 106(f), 7281(e), and 7802(5) of
title 38.
(F) Section 1005(a) of title 39.
(G) Any other provision of law that the
Director of the Office of Personnel Management
designates in regulations as being a veterans'
preference requirement for the purposes of this
subsection.
(H) Any regulation prescribed under
subsection (b) or (c) of section 1302 and any
other regulation that implements a provision of
law referred to in any of the preceding
subparagraphs.
(2) Notwithstanding any other provision of this
title, no authority to order corrective action shall be
available in connection with a prohibited personnel
practice described in subsection (b)(11). Nothing in
this paragraph shall be considered to affect any
authority under section 1215 (relating to disciplinary
action).
[(f)] (e)
(1) A disclosure shall not be excluded from
subsection (b)(8) because--
(A) the disclosure was made to a supervisor
or to a person who participated in an activity
that the employee or applicant reasonably
believed to be covered by subsection
(b)(8)(A)(i) and (ii);
(B) the disclosure revealed information that
had been previously disclosed;
(C) of the employee's or applicant's motive
for making the disclosure;
(D) the disclosure was not made in writing;
(E) the disclosure was made while the
employee was off duty; or
(F) of the amount of time which has passed
since the occurrence of the events described in
the disclosure.
(2) If a disclosure is made during the normal
course of duties of an employee, the disclosure
shall not be excluded from subsection (b)(8) if
any employee who has authority to take, direct
others to take, recommend, or approve any
personnel action with respect to the employee
making the disclosure, took, failed to take, or
threatened to take or fail to take a personnel
action with respect to that employee in
reprisal for the disclosure.
* * * * * * *
SEC. 2307. INFORMATION ON WHISTLEBLOWER PROTECTIONS.
(a) Definitions.--In this section--
(1) the term `agency'--
(A) except as provided in subparagraph (B),
has the meaning given that term in section
2302;
(B) does not include any entity that is an
element of the intelligence community, as
defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 3003(4));
(2) the term `new employee' means an individual--
(A) appointed to a position as an employee of
an agency on or after the date of enactment of
the Dr. Chris Kirkpatrick Whistleblower
Protection Act of 2017; and
(B) who has not previously served as an
employee; and
(3) the term ``whistleblower protections'' means the
protections against and remedies for a prohibited
personnel practice described in paragraph (8),
subparagraph (A)(i), (B), (C), or (D) of paragraph (9),
or paragraph (14) of section 2302(b).
(b) Responsibilities of Head of Agency.--The head of each
agency shall be responsible for the prevention of prohibited
personnel practices, for the compliance with and enforcement of
applicable civil service laws, rules, and regulations, and
other aspects of personnel management, and for ensuring (in
consultation with the Special Counsel and the Inspector General
of the agency) that employees of the agency are informed of the
rights and remedies available to them under this chapter and
chapter 12, including--
(1) information regarding whistleblower protections
available to new employees during the probationary
period;
(2) the role of the Office of Special Counsel and the
Merit Systems Protection Board with regard to
whistleblower protections; and
(3) how to make a lawful disclosure of information
that is specifically required by law or Executive order
to be kept classified in the interest of national
defense or the conduct of foreign affairs to the
Special Counsel, the Inspector General of an agency,
Congress, or other agency employee designated to
receive such disclosures.
(c) Timing.--The head of each agency shall ensure that the
information required to be provided under subsection (b) is
provided to each new employee of the agency not later than 6
months after the date the new employee begins performing as an
employee.
(d) Information Online.--The head of each agency shall make
available information regarding whistleblower protections
applicable to employees of the agency on the public website of
the agency, and on any online portal that is made available
only to employees of the agency if one exists.
(e) Delegees.--Any employee to whom the head of an agency
delegates authority for personnel management, or for any aspect
thereof, shall, within the limits of the scope of the
delegation, be responsible for the activities described in
subsection (b).
* * * * * * *
Subpart C--Employee Performance
* * * * * * *
CHAPTER 45--INCENTIVE AWARDS
* * * * * * *
Subchapter I--Awards for Superior Accomplishments
* * * * * * *
SEC. 4505A. PERFORMANCE-BASED CASH AWARDS.
(a) * * *
(b)
(1) * * *
(2) The failure to pay a cash award under this
section, or the amount of such an award, may not be
appealed. The preceding sentence shall not be construed
to extinguish or lessen any right or remedy under
subchapter II of chapter 12, chapter 71, or any of the
laws referred to in section [2302(d)] section 2302(c).
* * * * * * *
Subpart D--Pay and Allowances
* * * * * * *
CHAPTER 57--TRAVEL, TRANSPORTATION, AND SUBSISTENCE
* * * * * * *
Subchapter IV--Miscellaneous Provisions
* * * * * * *
SEC. 5755. SUPERVISORY DIFFERENTIALS.
(a) * * *
(b)
(1) * * *
(2) A supervisory differential may not be considered
to be part of the basic pay of an employee, and the
reduction or elimination of a supervisory differential
may not be appealed. The preceding sentence shall not
be construed to extinguish or lessen any right or
remedy under subchapter II of chapter 12 or under any
of the laws referred to in section [2302(d)] section
2302(c).
* * * * * * *
Subpart F--Labor-Management and Employee Relations
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
Subchapter II--Removal, Suspension for More Than 14 Days, Reduction in
Grade or Pay, or Furlough for 30 Days or Less
* * * * * * *
Table of sections
Sec.
7511. Definitions; application.
7512. Actions covered.
7513. Cause and procedure.
7514. Regulations.
7515. Discipline of supervisors based on retaliation against
whistleblowers.
* * * * * * *
SEC. 7515. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION AGAINST
WHISTLEBLOWERS.
(a) Definitions.--In this section--
(1) the term `agency'--
(A) except as provided in subparagraph (B),
means an entity that is an agency, as defined
under section 2302, without regard to whether
any other provision of this chapter is
applicable to the entity; and
(B) does not include any entity that is an
element of the intelligence community, as
defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 3003(4));
(2) the term `prohibited personnel action' means
taking or failing to take an action in violation of
paragraph (8), (9), or (14) of section 2302(b) against
an employee of an agency; and (3) the term `supervisor'
means an employee who would be a supervisor, as defined
under section 7103(a), if the entity employing the
employee was an agency.
(b) Proposed Disciplinary Actions.--
(1) In general.--If the head of the agency employing
a supervisor, an administrative law judge, the Merit
Systems Protection Board, the Special Counsel, a judge
of the United States, or the Inspector General of the
agency employing a supervisor determines that the
supervisor committed a prohibited personnel action, the
head of the agency employing the supervisor, in
accordance with the procedures under paragraph (2)--
(A) for the first prohibited personnel action
committed by a supervisor--
(i) shall propose suspending the
supervisor for a period of not less
than 3 days; and
(ii) may, in addition to a suspension
described in clause (i), propose any
other action, including reduction in
grade or pay, that the head of the
agency determines appropriate; and
(B) for the second prohibited personnel
action committed by a supervisor, shall propose
removing the supervisor.
(2) Procedures.--
(A) Notice.--A supervisor against whom an
adverse action u is proposed is entitled to
written notice
(i) stating the specific reasons for
the proposed action; and
(ii) informing the supervisor of the
right of the supervisor to review the
material which is relied on to support
the reasons for the proposed action.
(B) Answer and evidence.--
(i) In general.--A supervisor who is
notified under subparagraph (A) that
the supervisor is the subject of a
proposed adverse action under paragraph
(1) is entitled to 14 days following
such notification to answer and furnish
evidence in support of the answer.
(ii) No evidence furnished;
insufficient evidence.--After the end
of the 14-day period described in
clause (i), if a supervisor does not
furnish evidence as described in clause
(i) or if the head of the agency
determines that such evidence is not
sufficient to reverse the proposed
adverse action, the head of the agency
shall carry out the adverse action.
(C) Scope of procedures.--An action carried
out under this section--
(i) except as provided in clause
(ii), shall be subject to the same
requirements and procedures (including
regarding appeals) as an action under
section 7503, 7513, or 7543; and--
(ii) shall not be subject to--
(I) paragraphs (1) and (2) of
subsection section 7503(b);
(II) paragraphs (1) and (2)
of subsection b and subsection
(c) of section 7513; or
(III) paragraphs (1) and (2)
of subsection (b) and
subsection (c) of section 7543.
(3) Delegation.--
(A) In general.--Except as provided in
paragraph (B), the head of an agency may
delegate any authority or responsibility under
this subsection.
(B) Nondelegability of Determination
Regarding Prohibited Personnel Action.--If the
head of an agency is responsible for
determining whether a supervisor has committed
a prohibited personnel action for purpose of
paragraph (1), the head of the agency may not
delegate that responsibility
* * * * * * *
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012
* * * * * * *
SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR
TECHNICAL INFORMATION.
(a) * * *
(b) Protected Disclosure.--
(1) * * *
(2) Disclosures not excluded.--A disclosure shall not
be excluded from paragraph (1) for any reason described
under [section 2302(f)(1) or (2)] section 2303(e)(1) or
(2) of title 5, United States Code.
* * * * * * *
HOMELAND SECURITY ACT OF 2002
* * * * * * *
SEC. 704. CHIEF HUMAN CAPITAL OFFICER.
The Chief Human Capital Officer shall report to the
Secretary, or to another official of the Department, as the
Secretary may direct and shall ensure that all employees of the
Department are informed of their rights and remedies under
chapters 12 and 23 of title 5 by
(1) participating in the [2302(c)] 2307 Certification
Program of the Office of Special Counsel;
(2) achieving certification from the Office of
Special Counsel of the Department's compliance with
section [2302(c)] 2307 of title 5; and
(3) informing Congress of such certification not
later than 24 months after November 25, 2002.
* * * * * * *
PANAMA CANAL ACT OF 1979
* * * * * * *
SEC. 1217. RECRUITMENT AND RETENTION REMUNERATION.
(a) * * *
(b) * * *
(c) * * *
(d) * * *
(1) * * *
(2) * * *
(3) A decision by the Commission to exercise or to
not exercise the authority to pay a bonus under this
subsection shall not be subject to review under any
statutory procedure or any agency or negotiated
grievance procedure except under any of the laws
referred to in [section 2302(d)] section 2303(c) of
title 5.
* * * * * * *
SEC. 1233. TRANSITION SEPARATION INCENTIVE PAYMENTS.
(a) * * *
(b) A decision by the Commission to exercise or to not
exercise the authority to pay a transition separation incentive
under this section shall not be subject to review under any
statutory procedure or any agency or negotiated grievance
procedure except under any of the laws referred to in [section
2302(d)] section 2302(d) of title 5.
* * * * * * *
[all]