[House Report 114-842]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-842
======================================================================
FOLLOW THE RULES ACT
_______
November 30, 2016.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 6186]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 6186) to amend title 5, United
States Code, to extend certain protections against prohibited
personnel practices, and for other purposes, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 1
Section-by-Section............................................... 3
Explanation of Amendments........................................ 3
Committee Consideration.......................................... 3
Roll Call Votes.................................................. 3
Application of Law to the Legislative Branch..................... 3
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 4
Statement of General Performance Goals and Objectives............ 4
Duplication of Federal Programs.................................. 4
Disclosure of Directed Rule Makings.............................. 4
Federal Advisory Committee Act................................... 4
Unfunded Mandate Statement....................................... 4
Earmark Identification........................................... 4
Committee Estimate............................................... 4
Budget Authority and Congressional Budget Office Cost Estimate... 5
Changes in Existing Law Made by the Bill, as Reported............ 5
Committee Statement and Views
PURPOSE AND SUMMARY
H.R. 6186, the Follow the Rules Act, clarifies that the
protections in the Whistleblower Protection Act of 1989 for
employees and applicants for employment who refuse to obey an
order that would violate a law would include a violation of a
rule or regulation.
BACKGROUND AND NEED FOR LEGISLATION
The Whistleblower Protection Act of 1989 (WPA) made it a
prohibited personnel practice to ``take or fail to take, or
threaten to take or fail to take, any personnel action against
any employee or applicant for employment because of . . .
refusing to obey an order that would require the individual to
violate the law.''\1\ Codified at 5 U.S.C. Sec. 2302(b)(9)(D),
the provision has not been invoked frequently. A May 19, 2014
report by the U.S. Office of Special Counsel (OSC) noted:
``There is no case law directly addressing the application of
(b)(9)(D).''\2\
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\1\Whistleblower Protection Act of 1989, Pub. L. No. 101-12, Sec.
4(b).
\2\U.S. Office of Special Counsel, The U.S. Office of Special
Counsel's Role in Protecting Whistleblowers and Serving as a Safe
Channel for Government Employees to Disclose Wrongdoing (2014), at 32.
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In the fall of 2013, Dr. Timothy Allen Rainey was relieved
of his responsibilities as a contracting officer representative
at the Department of State. He contended his removal was the
result of a refusal to obey a supervisor's order to tell a
contractor to rehire a terminated subcontractor, and that
obeying such an order would violate the Federal Acquisition
Regulation. Rainey filed with the Merit Systems Protection
Board, arguing the removal of his duties constituted a
violation of 5 U.S.C. Sec. 2302(b)(9)(d).
The Department of State argued Rainey did not refuse to
obey an order that would require him to violate a law, and that
the Board thus did not have jurisdiction to hear the case. The
administrative law judge originally disagreed, issuing an order
on October 24, 2014 exercising jurisdiction. However, shortly
after a hearing began on the merits, the Supreme Court issued
its January 21, 2015 decision in Department of Homeland
Security v. MacLean.\3\ In MacLean, the Court found Congress
intended to provide whistleblowers with the strongest
protection possible, and thus held that as used in 5 U.S.C.
Sec. 2302(b)(8)(a), the word ``law'' refers only to a statute,
not a rule or regulation. In light of the Court's opinion in
MacLean, on January 30, 2015, the administrative law judge
issued an initial decision reversing her position that the
Board had jurisdiction. On August 6, 2015, a final decision was
issued which cited the MacLean case as a basis for finding that
``law,'' as used in Sec. 2302(b)(9)(D), could not include a
rule or regulation, and thus that the Board lacked
jurisdiction.\4\
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\3\135 S. Ct. 913 (2015).
\4\Rainey v. Dep't of State, 122 M.S.P.R. 592 (2015).
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When the full Board denied a petition for review, Rainey
appealed to the U.S. Court of Appeals for the Federal Circuit.
In a June 7, 2016 opinion, the U.S. Court of Appeals for the
Federal Circuit affirmed the Board's ruling, noting:
Dr. Rainey's arguments are heavy on policy reasons
why Congress likely would not have wanted to confine
the scope of section 2302(b)(9)(D) to statutes. These
policy considerations are not without force, and it may
be that the statute should be extended to cover rules,
regulations, and other sources of legal authority. If
so, Congress is free to alter the scope of the
statute.\5\
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\5\Rainey v. Merit Systems Protection Board, 824 F.3d 1359 (Fed.
Cir. 2016).
To remedy this situation, H.R. 6186 was introduced.
LEGISLATIVE HISTORY
H.R. 6186, the Follow the Rules Act, was introduced by
Representative Patrick Duffy (R-WI) on September 27, 2016 and
referred to the Committee on Oversight and Government Reform.
On November 16, 2016, the Committee on Oversight and Government
Reform ordered H.R. 6186 favorably reported without amendment
by voice vote.
Section-by-Section
Section 1. Short title
Designates 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
Amends 5 U.S.C. 2302(b)(9)(D) by inserting the language ``,
rule, or regulation'' after ``law'' and makes a technical
correction to remove the word ``for.''
Specifies that the amendment will only apply to personnel
actions after the date of enactment.
Explanation of Amendments
No amendments to H.R. 6186 were offered or adopted during
Full Committee consideration of the bill.
Committee Consideration
On November 16, 2016, the Committee met in open session and
ordered reported favorably the bill, H.R. 6186, by voice vote,
a quorum being present.
Roll Call Votes
No roll call votes were requested or conducted during Full
Committee consideration of H.R. 6186.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill amends title 5, United States Code, to extend certain
protections against prohibited personnel practices. As such
this bill does not relate to employment or access to public
services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal and objective of the bill is to amend title 5, United
States Code, to extend certain protections against prohibited
personnel practices.
Duplication of Federal Programs
No provision of this bill establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. 551.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
At the time of this writing, the Committee had yet to
receive a formal cost estimate from the Congressional Budget
Office for H.R. 6186. The Committee asserts that the
legislation clarifies a provision of whistleblower protection
law that has been used infrequently. Therefore, under H.R. 6186
there will be no new programs or associated spending, and it
would have no significant budgetary effects.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has not
received a cost estimate for this bill from the Director of
Congressional Budget Office, and instead has included a
committee estimate in the section prior to this one.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART A--GENERAL PROVISIONS
* * * * * * *
CHAPTER 23--MERIT SYSTEM PRINCIPLES
* * * * * * *
Sec. 2302. Prohibited personnel practices
(a)(1) For the purpose of this title, ``prohibited personnel
practice'' means any action described in subsection (b).
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter
43 of this title or under title 38;
(ix) a decision concerning pay, benefits, or
awards, or concerning education or training if
the education or training may reasonably be
expected to lead to an appointment, promotion,
performance evaluation, or other action
described in this subparagraph;
(x) a decision to order psychiatric testing
or examination;
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties,
responsibilities, or working conditions;
with respect to an employee in, or applicant for, a
covered position in an agency, and in the case of an
alleged prohibited personnel practice described in
subsection (b)(8), an employee or applicant for
employment in a Government corporation as defined in
section 9101 of title 31;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration;
(C) ``agency'' means an Executive agency and the
Government Publishing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8) or
section 2302(b)(9) (A)(i), (B), (C), or (D);
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Geospatial-
Intelligence Agency, the National Security
Agency, the Office of the Director of National
Intelligence, and the National Reconnaissance
Office; and
(II) as determined by the President, any
executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
provided that the determination be made prior
to a personnel action; or
(iii) the Government Accountability Office;
and
(D) ``disclosure'' means a formal or informal
communication or transmission, but does not include a
communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee or
applicant providing the disclosure reasonably believes
that the disclosure evidences--
(i) any violation of any law, rule, or
regulation; or
(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall not,
with respect to such authority--
(1) discriminate for or against any employee or
applicant for employment--
(A) on the basis of race, color, religion,
sex, or national origin, as prohibited under
section 717 of the Civil Rights Act of 1964 (42
U.S.C. 2000e-16);
(B) on the basis of age, as prohibited under
sections 12 and 15 of the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under
section 6(d) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition,
as prohibited under section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or
political affiliation, as prohibited under any
law, rule, or regulation;
(2) solicit or consider any recommendation or
statement, oral or written, with respect to any
individual who requests or is under consideration for
any personnel action unless such recommendation or
statement is based on the personal knowledge or records
of the person furnishing it and consists of--
(A) an evaluation of the work performance,
ability, aptitude, or general qualifications of
such individual; or
(B) an evaluation of the character, loyalty,
or suitability of such individual;
(3) coerce the political activity of any person
(including the providing of any political contribution
or service), or take any action against any employee or
applicant for employment as a reprisal for the refusal
of any person to engage in such political activity;
(4) deceive or willfully obstruct any person with
respect to such person's right to compete for
employment;
(5) influence any person to withdraw from competition
for any position for the purpose of improving or
injuring the prospects of any other person for
employment;
(6) grant any preference or advantage not authorized
by law, rule, or regulation to any employee or
applicant for employment (including defining the scope
or manner of competition or the requirements for any
position) for the purpose of improving or injuring the
prospects of any particular person for employment;
(7) appoint, employ, promote, advance, or advocate
for appointment, employment, promotion, or advancement,
in or to a civilian position any individual who is a
relative (as defined in section 3110(a)(3) of this
title) of such employee if such position is in the
agency in which such employee is serving as a public
official (as defined in section 3110(a)(2) of this
title) or over which such employee exercises
jurisdiction or control as such an official;
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant which the employee or
applicant reasonably believes evidences--
(i) any violation of any law, rule,
or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety,
if such disclosure is not specifically
prohibited by law and if such information is
not specifically required by Executive order to
be kept secret in the interest of national
defense or the conduct of foreign affairs; or
(B) any disclosure to the Special Counsel, or
to the Inspector General of an agency or
another employee designated by the head of the
agency to receive such disclosures, of
information which the employee or applicant
reasonably believes evidences--
(i) any violation (other than a
violation of this section) of any law,
rule, or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(9) take or fail to take, or threaten to take or fail
to take, any personnel action against any employee or
applicant for employment because of--
(A) the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or
regulation--
(i) with regard to remedying a
violation of paragraph (8); or
(ii) other than with regard to
remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully
assisting any individual in the exercise of any
right referred to in subparagraph (A)(i) or
(ii);
(C) cooperating with or disclosing
information to the Inspector General of an
agency, or the Special Counsel, in accordance
with applicable provisions of law; or
(D) [for] refusing to obey an order that
would require the individual to violate a law,
rule, or regulation;
(10) discriminate for or against any employee or
applicant for employment on the basis of conduct which
does not adversely affect the performance of the
employee or applicant or the performance of others;
except that nothing in this paragraph shall prohibit an
agency from taking into account in determining
suitability or fitness any conviction of the employee
or applicant for any crime under the laws of any State,
of the District of Columbia, or of the United States;
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement;
(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.''.
This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to Congress. For purposes of paragraph (8), (i) any presumption
relating to the performance of a duty by an employee whose
conduct is the subject of a disclosure as defined under
subsection (a)(2)(D) may be rebutted by substantial evidence,
and (ii) a determination as to whether an employee or applicant
reasonably believes that such employee or applicant has
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to
public health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee or applicant
could reasonably conclude that the actions of the Government
evidence such violations, mismanagement, waste, abuse, or
danger.
(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) 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)(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)(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.
* * * * * * *
[all]