[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
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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\
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\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).
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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:
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\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\
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\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.
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\4\Id. at 11.
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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\
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\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).
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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\
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\7\MacLean, 135 S. Ct. at 919.
\8\Id. at 921.
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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.
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\9\Whistleblower Protection Act of 1989, Sec. 2(a)(2), Pub. L. No.
101-12, 103 Stat. 16. (1989).
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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\
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\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).
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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]