```

[Senate Report 114-360]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 646

114th Congress   }                                         {   Report
                              SENATE                          
 2d Session      }                                         {   114-360
_______________________________________________________________________

                                     

                                                       

         OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2016

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 2968

  TO REAUTHORIZE THE OFFICE OF SPECIAL COUNSEL, AND FOR OTHER PURPOSES
  
  

            September 27, 2016.--Ordered to be printed
               
               
               
               
               
                           _________ 
                                  
             U.S. GOVERNMENT PUBLISHING OFFICE
                       WASHINGTON : 2016                      
               
               
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming             HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire          CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     GARY C. PETERS, Michigan
BEN SASSE, Nebraska

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
       Patrick J. Bailey, Chief Counsel for Governmental Affairs
                       Courtney J. Allen, Counsel
              Gabrielle A. Batkin, Minority Staff Director
           John P. Kilvington, Minority Deputy Staff Director
               Mary Beth Schultz, Minority Chief Counsel
                   Portia R. Bamiduro, Senior Counsel
                     Laura W. Kilbride, Chief Clerk
                     

                                                       Calendar No. 646
                                                       
114th Congress   }                                         {   Report
                                 SENATE
 2d Session      }                                         {   114-360

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

 
         OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2016

                                _______
                                

               September 27, 2016.--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. 2968]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 2968) to 
reauthorize the Office of Special Counsel, and for other 
purposes, having considered the same, 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..............................................8
 IV. Section-by-Section Analysis......................................8
  V. Evaluation of Regulatory Impact.................................10
 VI. Congressional Budget Office Cost Estimate.......................10
VII. Changes in Existing Law Made by the Bill, as Reported...........12

                         I. Purpose and Summary

    The purpose of S. 2968, the Office of Special Counsel 
Reauthorization Act of 2016, is to reauthorize the Office of 
Special Counsel (OSC) through fiscal year 2021 and provide 
updated authorities to the OSC. The bill will enhance the OSC's 
authority to investigate allegations of prohibited personnel 
practices and to seek corrective actions from Federal agencies, 
as well as provide additional protections for Federal employees 
who make disclosures of waste, fraud, abuse or misconduct in 
the Federal government.

              II. Background and the Need for Legislation

    Congress first created the position of Special Counsel in 
the Civil Service Reform Act of 1978.\1\ The Special Counsel 
was originally created as a position within the Merit Systems 
Protection Board (Board) to investigate disclosures of 
violations of law and waste, fraud, and abuse in the Federal 
Government, to investigate allegations of prohibited personnel 
practices and whistleblower retaliation, and to file complaints 
against agency officials and Federal employees who engage in 
these actions.\2\ Congress removed the Special Counsel from the 
Board when it established the OSC in the Whistleblower 
Protection Act of 1989 (WPA).\3\ The WPA authorized the OSC 
through fiscal year 1992.\4\ Congress reauthorized the OSC from 
1993 to 1997\5\ and from 2002 to 2007.\6\ Since 2008, however, 
the OSC has received funding and continued operating without 
additional authorizing legislation.
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    \1\Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 
1111, 1122-31 (1978).
    \2\Id. at 1122, 1125.
    \3\Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 
Stat. 16, 19-29 (1989).
    \4\Id. at 34.
    \5\Pub. L. No. 103-424, 108 Stat. 4361 (to reauthorize the Office 
of Special Counsel, and for other purposes).
    \6\Pub. L. No. 107-304, Sec. 2, 116 Stat. 2363, 2364 (to amend 
title 5, United States Code, to allow certain catch-up contributions to 
the Thrift Savings Plan to be made by participants age 50 or over; to 
reauthorize the Merit Systems Protection Board and the Office of 
Special Counsel; and for other purposes).
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    The OSC is responsible for receiving whistleblower 
disclosures of waste, fraud, and abuse and for receiving and 
investigating allegations of prohibited personnel practices,\7\ 
including whistleblower retaliation.\8\ In the case of 
whistleblower disclosures, the OSC reviews the allegation and 
determines whether there is a substantial likelihood that the 
disclosure evidences waste; abuse; violations of laws, rules or 
regulations; gross mismanagement, or a danger to public health 
and safety.\9\ The OSC provides the disclosure to the 
appropriate agency head and requires the agency head to 
investigate the disclosure and report its findings to the OSC, 
which will be transmitted to the President and Congress.\10\ 
For alleged prohibited personnel practices, the OSC 
investigates the allegation and, if it determines that a 
prohibited personnel practice occurred, seeks corrective action 
either from the agency or from the Board.\11\
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    \7\5 U.S.C. Sec. 2302(b).
    \8\5 U.S.C. Sec. 1212(a).
    \9\5 U.S.C. Sec. Sec. 1213(a), (b).
    \10\5 U.S.C. Sec. Sec. 1213(c)-(e).
    \11\5 U.S.C. Sec. 1214.
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    Special Counsel Carolyn Lerner told the Committee at a 
January 12, 2016, hearing that ``[OSC] is engaged in the most 
productive period in its history.''\12\ The number of 
complaints filed with and reviewed by the OSC has steadily 
increased over the past few years. In fiscal year 2015, 6,141 
new cases were filed with the OSC, representing 1,000 more than 
the number of cases filed in fiscal year 2014 and 37 percent 
more than in fiscal year 2013.\13\ Fiscal year 2015 was the 
first time in the history of the OSC that it received more than 
6,000 new cases.\14\
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    \12\Nomination of Michael J. Missal to be Inspector General, U.S. 
Department of Veterans Affairs, and the Honorable Carolyn N. Lerner to 
be Special Counsel, Office of Special Counsel: Hearing Before the S. 
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) 
(statement of Carolyn N. Lerner, Special Counsel, Office of Special 
Counsel).
    \13\Office of Special Counsel, Performance and Accountability 
Report for Fiscal Year 2015, 4, 10 (2015), available at https://
osc.gov/Resources/FY%202015%20PAR-16Nov2015%20Final.pdf.
    \14\Id.
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    With the significant increase in its caseload, there are 
several challenges the OSC faces that can be addressed through 
reauthorization legislation. The OSC recommended to Congress 
changes to help the agency be more productive in light of the 
increasing workload, to improve its access to agency 
information, and to improve agency accountability for actions 
ordered by the OSC.\15\
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    \15\Reauthorization of the U.S. Office of Special Counsel: Hearing 
Before the Subcomm. on Gov't Operations of the H. Comm. on Oversight & 
Gov't Reform, 114th Cong. (2015) (statement of Carolyn N. Lerner, 
Special Counsel, Office of Special Counsel) [hereinafter ``House 
Hearing''].
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Lack of statutory authority to access documents

    On occasion, an obstacle in OSC investigations is the lack 
of statutory authority by the OSC to request information from 
agencies. Currently, authority to request information from 
agencies only exists in regulation.\16\ The OSC informed 
Congress that ``[w]hile agencies typically comply with [OSC 
information] requests, we have had some difficulty in our 
investigations where agencies do not provide timely or complete 
responses or claim common law privileges as a basis for 
withholding documents.''\17\ Special Counsel Lerner provided 
testimony asserting that ``[i]t is inconsistent with the 
historical intent of the attorney-client and deliberative 
process privileges to assert them in the course of an intra-
Executive branch investigation. This is particularly true where 
OSC must step into the shoes of the agency to determine whether 
the agency allowed illegal conduct to occur.''\18\ The OSC 
wrote to the Committee:
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    \16\Id. See also 5 C.F.R. Sec. 5.4 (2016).
    \17\House Hearing, supra note 15.
    \18\Id.

          The public interest in a transparent and accountable 
        government is best served by ensuring OSC's authority 
        to access all information, including certain privileged 
        information. Agencies should not be able to shield 
        managers from accountability or hide retaliatory 
        conduct by withholding information from OSC. . . . 
        While agencies typically comply with OSC requests for 
        [communications between management officials and agency 
        counsel], some agencies assert that these types of 
        communications are privileged and withhold this 
        information from OSC. In such cases, OSC must engage in 
        prolonged disputes over access to information or 
        attempt to complete our investigation without the 
        benefit of these important communications. This 
        undermines the effectiveness of the whistleblower law 
        and prolongs OSC investigations.\19\
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    \19\Letter from Carolyn N. Lerner, Special Counsel, Office of 
Special Counsel, to Senator Ron Johnson, Chairman, S. Comm. on Homeland 
Sec. & Governmental Affairs (May 26, 2016).

    For whistleblower disclosure cases, the OSC referred almost 
200 disclosures to agencies for further investigation over the 
last three fiscal years.\20\ Approximately 90 percent of these 
disclosures were wholly or partially substantiated by the 
agencies.\21\ However, some of the corrective action plans 
submitted to the OSC in response to the identified misconduct 
are ``insufficient or incomplete.''\22\ For this, the OSC 
recommended to Congress that agencies be required ``to provide 
an explanation if they fail to take action, including 
disciplinary action, in the case of substantiated misconduct. 
And . . . OSC should have the statutory authority to request 
and receive detailed follow-up information.''\23\
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    \20\House Hearing, supra note 15.
    \21\Id.
    \22\Id.
    \23\Id.
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Sensitive jobs loophole

    In addition to updating the OSC's authorities, the 
Committee considered other ways to enhance legal protections 
for Federal whistleblowers. According to the Government 
Accountability Project, ``since the WPEA was passed, creative 
tactics are circumventing its mandate.''\24\
---------------------------------------------------------------------------
    \24\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) (testimony of 
Tom Devine, Legal Director, Government Accountability Project).
---------------------------------------------------------------------------
    Whistleblower protection organizations consider retaliatory 
investigations to be ``the first step and most common form of 
harassment against whistleblowers.''\25\ OSC reported that 
``retaliatory investigations can take many forms, such as 
unwarranted referrals for criminal or civil investigations or 
overly scrutinized reviews of time and attendance 
records.''\26\ In a seminal case, where an employee challenged 
a proposed personnel action based under WPA, the Board held:
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    \25\Letter from ACORN 8 et al., to Senator Ron Johnson, Chairman, 
S. Comm. on Homeland Sec. & Governmental Affairs, and Charles Grassley, 
Chairman, S. Comm. on the Judiciary (Jun. 7, 2016).
    \26\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), available at 
https://osc.gov/Resources/ 
OSC's%20Role%20in%20Protecting%20Whistleblowers%20(5-19-14).pdf.

          When, as here, an investigation is so closely related 
        to the personnel action that it could have been a 
        pretext for gathering evidence to retaliate, and the 
        agency does not show by clear and convincing evidence 
        that the evidence would have been gathered absent the 
        protected disclosure, then the appellant [employee] 
        will prevail on his affirmative defense of retaliation 
        for whistleblowing.\27\
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    \27\Russell v. Dep't of Justice, 76 M.S.P.R. 317, 324 (1997) 
(emphasis added).

    When the Committee passed the Whistleblower Protection 
---------------------------------------------------------------------------
Enhancement Act of 2012 (WPEA), it acknowledged that:

          Because retaliatory investigations are not explicitly 
        referenced as a ``personnel action'' that may be 
        prohibited under the WPA, a whistleblower might be able 
        to demonstrate that an investigation was undertaken in 
        retaliation for a protected disclosure, but 
        nevertheless have no remedy under the WPA if the 
        investigation did not result in a significant change in 
        job duties, responsibilities, or working 
        conditions.\28\
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    \28\S. Rep. No. 112-155, at 21 (2012).

    However, the Obama Administration expressed concerns that 
adding retaliatory investigations as a prohibited personnel 
practice could inhibit legitimate and necessary agency 
inquiries, such as background investigations for employment, 
inspector general investigations, and security clearance 
eligibility determination investigations.\29\ To address the 
issue of retaliatory investigations in a manner that would not 
hamper legitimate agency activities, WPEA authorized the OSC to 
investigate allegations that a personnel action against an 
employee was undertaken as a result of a retaliatory 
investigation.\30\ Under WPEA, such an employee can obtain 
financial relief from the agency for those costs or damages 
incurred as a result of the retaliatory investigation.\31\
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    \29\Id.
    \30\Id. See also Whistleblower Protection Enhancement Act 
Sec. 104(c), 5 U.S.C. Sec. 1214(h) (2012).
    \31\Id.
---------------------------------------------------------------------------
    Despite this provision, retaliatory investigations continue 
to occur, and, as some have claimed, have intensified to 
criminal investigations in order to silence whistleblowers. On 
June 11, 2016, the Committee heard testimony from Federal 
employees who alleged they had been subject to retaliatory 
investigations after making disclosures of waste, fraud, abuse, 
and mismanagement.\32\ Tom Devine, Legal Director of The 
Government Accountability Project (GAP) informed the Committee 
that a recent development is the use of criminal investigations 
by agencies, rather than administrative investigations, to 
force whistleblowers to resign or possibly face a prosecutorial 
referral.\33\ He also testified that, for whistleblowers, ``the 
chilling effect of facing jail time is much more severe than 
the chilling effect from possible loss of your job.''\34\
---------------------------------------------------------------------------
    \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).
    \33\Id. (Testimony of Tom Devine, Legal Director, Government 
Accountability Project).
    \34\Id.
---------------------------------------------------------------------------
    Of these creative tactics for whistleblower retaliation, 
GAP noted that ``the most all-encompassing is the sensitive 
jobs loophole . . . a national security loophole that would 
subsume the entire civil service rule of law. . . .''\35\ 
According to GAP, the Office of Personnel Management (OPM) 
issued a final rule under which:
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    \35\Id.

          [T]he government has uncontrolled power to designate 
        almost any position as national security sensitive. 
        Once that happens, sensitive employees no longer have 
        the right to defend themselves in any kind of hearing. 
        They do not even necessarily have the right to know 
        what they were charged with doing wrong in order to 
        lose their designation to work for the Federal 
        Government. . . . Every whistleblower will lose a case 
        who has a sensitive job.\36\
---------------------------------------------------------------------------
    \36\Id. See also Designation of National Security Positions in the 
Competitive Service, and Related Matters, 80 Fed. Reg. 108, 32243 (July 
6, 2015).

    In tandem with the OPM rule on the designation of national 
security positions, a 2013 decision by the United States Court 
Appeals for the Federal Circuit held that an agency 
determination of an individual's eligibility to occupy a 
sensitive position is not reviewable by the Board, even if the 
position does not involve access to classified information.\37\ 
Whistleblower rights groups consider this removal of due 
process appeals to be a ``potentially all-encompassing national 
security loophole [that] has been the most severe threat both 
to the merit system and [WPA].''\38\
---------------------------------------------------------------------------
    \37\Id. See also Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013).
    \38\Letter from ACORN 8 et al., supra note 26.
---------------------------------------------------------------------------

Unauthorized access of medical records

    The recent disclosures of fraud, misconduct, and 
mismanagement within the Department of Veterans Affairs (VA) 
uncovered another form of whistleblower retaliation. OSC 
Special Counsel Lerner testified before the House Committee on 
Veterans Affairs Subcommittee on Oversight and Investigations 
that:

          A[n] . . . ongoing concern is the unlawful accessing 
        of employee medical records in order to discredit 
        whistleblowers. In many instances, VA employees are 
        themselves veterans and receive care at VA hospitals. 
        In several cases, the medical record of whistleblowers 
        have been accessed and information in those records has 
        apparently been used to attempt to discredit the 
        whistleblowers.\39\
---------------------------------------------------------------------------
    \39\Addressing Continued Whistleblower Retaliation Within the VA: 
Hearing Before the H. Subcomm. on Oversight and Investigations of the 
Comm. on Veterans Affairs, 114th Cong. (2015) (statement of Carolyn 
Lerner, Special Counsel, Office of Special Counsel).

    This Committee also heard testimony on September 22, 2015, 
from Brandon Coleman, a medical professional of the Phoenix, 
Arizona VA health care system, who alleged that his own medical 
treatment records were repeatedly accessed by some of his co-
workers after he disclosed concerns that the VA was mishandling 
suicidal veterans.\40\ According to Mr. Coleman, the VA then 
attempted to terminate his employment using information from 
those improperly-accessed medical records.\41\ A co-founder of 
the VA Truth Tellers, an organization of whistleblowers who 
have experienced retaliation since disclosing misconduct in the 
VA, testified that he has talked with more than 50 
whistleblowers across the country who have had their medical 
records accessed.\42\
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    \40\Improving VA Accountability: Examining Firsthand Accounts of 
Department of Veterans Affairs Whistleblowers: Hearing Before the S. 
Comm. on Homeland Sec. and Governmental Affairs, 114th Cong. (2015) 
(statement of Brandon Coleman, Sr., Ph.D., Addiction Therapist, Phoenix 
Veterans Affairs Health Care System.)
    \41\Id.
    \42\Id. (testimony of Shea Wilkes, Licensed Clinical Social Worker, 
Overton VA Medical Center).
---------------------------------------------------------------------------

Onerous requirements to close cases

    In light of the ``skyrocketing caseloads'' whistleblower 
complaints from the VA and other agencies, the OSC requested 
that Congress consider revising the procedural requirements 
that the OSC must undertake for each and every complaint it 
receives.\43\ Under current law, the OSC is required to send 
several documents to complainants, regardless of whether the 
complaint is repetitive, adjudicated by the Board, or filed 
several years after the matter of the complaint occurred.\44\ 
According to the OSC, ``these requirements require us to devote 
significant resources to closing non-meritorious complaints, 
instead of focusing on prosecuting and resolving meritorious 
cases.''\45\
---------------------------------------------------------------------------
    \43\Id. (statement of Carolyn Lerner, Special Counsel, Office of 
Special Counsel).
    \44\5 U.S.C. Sec. 1214.
    \45\Improving VA Accountability, supra note 39 (statement of 
Carolyn Lerner).
---------------------------------------------------------------------------

Protecting the OSC's own employees

    While OSC is charged with protecting Federal 
whistleblowers, last year's results from an annual survey of 
Federal employees, including employees at OSC, suggests the 
agency may benefit from additional oversight and enhanced 
whistleblower protections for its own employees. This year's 
results evidence OSC's commitment to safeguarding employee 
protections and improving employee engagement and satisfaction. 
Each year, OPM conducts the Federal Employee Viewpoint Survey 
(FEVS), which provides employees an opportunity to ``candidly 
share their perceptions of their work experiences, their 
agencies, and their leaders.''\46\ A significant concern raised 
by the Partnership for Public Service report on the 2015 FEVS 
survey is that only 41.5 percent of OSC employees responded 
positively to the questions ``Arbitrary actions, personal 
favoritism, and coercion for partisan political purposes are 
not tolerated,'' and ``I can disclose a suspected violation of 
any law, rule, or regulation without fear of reprisal.''\47\ 
Recent survey results indicate OSC is making progress to 
address the 2015 survey results. For the 2016 FEVS, OSC 
employees reported substantial improvements to these questions, 
as well as for the question ``Prohibited personnel practices . 
. . are not tolerated.''\48\ As the agency charged with 
investigating and redressing prohibited personnel practice 
violations in other Federal agencies, it is important for OSC 
to lead by example by continuing to earn positive reporting and 
lowering negative reporting from its own employees to these 
FEVS questions.
---------------------------------------------------------------------------
    \46\Office of Personnel Management, Federal Employee Viewpoint 
Survey Results: Gov't Mgmt Report, 2 (2015), available at https://
www.fedview.opm.gov/2015FILES/2015_FEVS_Gwide_Final_Report.PDF.
    \47\P'ship for Pub. Serv., The Best Places to Work in the Fed. 
Gov't, Effective Leadership: Fairness (2015), available at http://
bestplacestowork.org/BPTW/rankings/categories/small/
leadership_sub_fairness_15.
    \48\Office of Personnel Management, Federal Employee Viewpoint 
Survey Results: Gov't Mgmt Report (2016), available at https://osc.gov/
Resources/fevs-2012-2016-comparison.pdf.
---------------------------------------------------------------------------
    The poor results for the OSC in the 2015 employee survey 
moved Chairman Johnson to request a programmatic review of OSC 
by the Government Accountability Office (GAO).\49\ As a part of 
its review, Chairman Johnson requested that GAO assess 
``whether there are adequate safeguards in place for proper 
oversight of OSC.''\50\ These safeguards include the procedure 
for OSC employee reporting of disclosures or prohibited 
personnel practices, the adequacy of the agreement between the 
OSC and the National Science Foundation Inspector General for 
such reporting, and the adequacy of the mechanisms to prevent a 
conflict of interest of the Special Counsel or Deputy Special 
Counsel in the event of an investigation of OSC by the 
Integrity Committee of the Council of the Inspectors General on 
Integrity and Efficiency.\51\
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    \49\Letter from Senator Ron Johnson, Chairman, S. Comm. on Homeland 
Sec. and Governmental Affairs, to Gene Dodaro, Comptroller General, 
Gov't Accountability Off. (Apr. 25, 2016).
    \50\Id.
    \51\Id.
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    OSC also responded to these employee survey results with an 
internal performance review that merits application government-
wide. In 2016, OSC began evaluating its managers on adherence 
to whistleblower protection laws and policies as a critical 
element in their performance plans.\52\ In addition to existing 
criteria for performance reviews, ``managers will be required 
to foster an environment that promotes disclosures and prevents 
retaliation.''\53\ This performance requirement on 
whistleblower protection for OSC employees is unique from other 
Federal agencies, as Federal law does not require agencies' 
performance appraisal systems to consider employee adherence to 
whistleblower protection laws.\54\
---------------------------------------------------------------------------
    \52\Charles S. Clark, Whistleblower Protection Agency Looks to 
Clean Up Its Own Backyard, Government Executive (Apr. 1, 2016), http://
www.govexec.com/oversight/2016/04/whistleblower-protection-agency-
looks-clean-its-own-backyard/127189/.
    \53\Id.
    \54\5 U.S.C. Sec. 4302.
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Conclusion

    Special Counsel Lerner told the Committee that 
``reauthorization provides Congress with an opportunity to 
evaluate OSC's authorities and responsibilities and make any 
necessary adjustments.''\55\ A reauthorization of OSC that 
provides OSC with statutory authority to access information, an 
enhanced ability to oversee agency implementation of corrective 
actions, and streamlined procedures for reviewing allegations, 
along with additional whistleblower protections, will help 
ensure that Federal employees have an avenue for recourse 
should they be faced with retaliatory personnel actions after 
disclosing waste, fraud, and abuse in the federal government.
---------------------------------------------------------------------------
    \55\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 N. Lerner, Special Counsel, Office of Special 
Counsel).
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                        III. Legislative History

    S. 2968, the Office of Special Counsel Reauthorization Act, 
was introduced on May 23, 2016, by Chairman Ron Johnson and 
Senator Charles Grassley. Senator Claire McCaskill joined as a 
co-sponsor on June 10, 2016. The bill was referred to the 
Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 2968 at a business meeting on 
May 25, 2016. The legislation was passed by voice vote with 
Senators Johnson, Portman, Paul, Lankford, Ayotte, Ernst, 
Sasse, Carper, McCaskill, Tester, Baldwin, Heitkamp, Booker, 
and Peters 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 
``Office of Special Counsel Reauthorization Act of 2016.''

Section 2. Adequate access of Special Counsel to information

    This section authorizes the OSC to have timely access to 
all documents or other information that relate to a matter 
within the jurisdiction or authority of the OSC that are in the 
possession of a Federal agency. This section also clarifies 
that a Federal agency cannot withhold any information from the 
OSC, an independent Federal agency, on the basis of common law 
privilege and providing such information does not waive any 
assertion of privilege by the Federal agency in any other 
proceeding. If an agency does withhold or fail to comply with 
information requested by the OSC, the OSC is required to report 
this to Congress.

Section 3. Prohibited personnel practices; Information on whistleblower 
        protections

    This section delineates the responsibilities of Federal 
agency heads for preventing prohibited personnel practices, 
enforcing Federal whistleblower protection laws, and training 
Federal employees on their rights to make disclosures and their 
remedies should they be subject to prohibited personnel 
practices. This section also makes accessing a Federal 
employee's medical record a prohibited personnel action.

Section 4. Additional whistleblower provisions

    This section provides additional tools for the OSC, the 
Board, and Federal agencies to prevent, investigate, or correct 
whistleblower retaliation in the Federal workplace.
    Subsection (a) allows the OSC to request additional 
information from a Federal agency in its response to a finding 
by the OSC of a prohibited personnel practice. This subsection 
also extends the amount of time for the OSC to review a 
complaint for a substantial likelihood that the complainant 
discloses information warranting further investigation.
    Subsection (b) allows the OSC to seek corrective action for 
a Federal agency investigation of an employee that was started, 
expanded, or extended in retaliation for a disclosure or 
protected activity by the employee, regardless of whether the 
agency investigation resulted in a personnel action against the 
employee.
    Subsection (c) allows the Board to review an appeal of an 
action filed by an employee that arises from a determination 
that the employee is ineligible for a sensitive position that 
does not require a security clearance or access to classified 
information.
    Subsection (d) requires Federal agencies to develop 
criteria by which whistleblower protection is evaluated in the 
performance appraisals for supervisory employees.
    Subsection (e) requires Federal agencies to submit an 
annual report to Congress detailing the number of performance 
appraisals in which supervisory employees were determined to 
have unacceptable performance under the whistleblower 
protection criteria.

Section 5. Termination of certain investigations by the Office of 
        Special Counsel

    This section allows the OSC to terminate an investigation 
without an opportunity for the complainant to respond. The OSC 
can terminate an investigation under this section if it 
determines the complaint is not in the jurisdiction of the OSC, 
if it alleges the same facts and circumstances as a previous 
complaint investigated by the OSC or filed with the Board, or 
if the complaint is not timely based on when the complainant 
knew or should have known of the prohibited personnel practice.

Section 6. Allegations of wrongdoing within the Office of Special 
        Counsel

    Under this section, the OSC is required to enter into at 
least one agreement with a Federal agency inspector general for 
the purposes of receiving, reviewing, and investigating 
complaints from OSC employees. This section requires the OSC to 
provide a direct line of communication between its employees 
and such Inspectors General and does not allow the OSC to 
require any internal approval before an OSC employee can file a 
complaint with the inspector general.

Section 7. Reporting requirements

    This section revises the information required in the annual 
report submitted to Congress by the OSC.

Section 8. Establishment of Survey Pilot Program

    This section suspends the annual survey of complainants to 
the OSC and creates a pilot program that surveys individuals 
during fiscal year 2018 who filed a complaint or disclosure 
with the OSC. This survey will be designed to collect 
information on the individual's treatment at different stages 
of review by the OSC, not just the disposition of the 
individual's case as currently required in statute. The results 
of the survey will be published in the annual report by the 
OSC.

Section 9. Authorization of appropriations

    This section authorizes appropriations of sums necessary 
for the OSC to carry out the provisions of this title through 
fiscal year 2021.

                   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

                                                     July 26, 2016.
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. 2968, the Office of 
Special Counsel Reauthorization Act of 2016.
    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. 2968--Office of Special Counsel Reauthorization Act of 2016

    Summary: S. 2968 would authorize appropriations for the 
Office of Special Counsel (OSC) for fiscal years 2016 through 
2021. The bill also would amend several of the laws governing 
the OSC and would extend new legal protections to federal 
employees (known as whistleblowers) who report abuse, fraud, 
and waste related to government activities.
    CBO estimates that implementing this legislation would cost 
$145 million over the 2017-2021 period, assuming appropriation 
of the necessary amounts. Enacting S. 2968 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    CBO estimates that enacting S. 2968 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2027.
    S. 2968 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary effects of S. 2968 are shown in the following table. 
The costs of this legislation fall within budget function 800 
(general government).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2017     2018     2019     2020     2021   2017-2021
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Office of Special Counsel:
    Estimated Authorization Level.......................       25       26       27       28       29       135
    Estimated Outlays...................................       23       26       27       28       29       133
Other Provisions:
    Estimated Authorization Level.......................        2        2        2        2        2        10
    Estimated Outlays...................................        2        2        2        2        2        10
    Total Increases:
        Estimated Authorization Level...................       27       28       29       30       31       145
        Estimated Outlays...............................       25       28       29       30       31       143
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
2968 will be enacted near the end of fiscal year 2016, that the 
necessary amounts will be appropriated each year, and that 
spending will follow historical spending patterns for the 
agency.
    Under current law, the OSC investigates complaints 
regarding reprisals against federal employees who inform 
authorities of fraud or other improprieties in the operation of 
federal programs. The OSC can order corrective action (such as 
job restoration, back pay, and reimbursement of attorneys' fees 
and medical costs) for valid complaints. If agencies fail to 
take corrective actions, the OSC or the employee can pursue a 
case through the Merit Systems Protection Board (MSPB) for 
resolution.

Reauthorization of OSC

    Section 9 of the bill would authorize the annual 
appropriation, through 2021, of such sums as may be necessary 
for OSC operations. In 2016, the OSC received an appropriation 
of $24 million; CBO estimates that continuing its activities at 
that level and adjusting for anticipated inflation would cost 
$133 million over the 2017-2021 period.

Other provisions

    Under current law, when settling employment disputes 
between the federal government and employees over prohibited 
personnel practices, federal agencies are required to pay for 
an employee's attorney, any retroactive salary payments, and 
any travel or medical costs associated with the claim. S. 2968 
would expand legal protections for whistleblowers and would 
allow the OSC to seek corrective action for federal employees 
who suffered retaliation by their agency.
    According to the MSPB and the OSC, these new legal 
protections would affect a small number of cases and would 
usually have settlement amounts of about $20,000. Based on 
information about the probable number of such complaints and 
the cost of similar corrective actions provided by those 
agencies, CBO estimates that these new legal protections would 
increase awards and administrative costs by about $80,000 for 
each of the 26 major federal agencies each year.
    Pay-As-You-Go considerations: None.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting S. 2968 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2027.
    Intergovernmental and private-sector impact: S. 2968 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Previous CBO estimate: On April 11, 2016, CBO transmitted a 
cost estimate for H.R. 4639, the Thoroughly Investigating 
Retaliation Against Whistleblowers Act, as ordered reported by 
the House Committee on Oversight and Government Reform on March 
1, 2016. Both pieces of legislation would reauthorize the OSC, 
but S. 2968 would authorize the office through 2021 and has 
additional provisions that would increase awards and 
administrative costs to agencies. Those differences are 
reflected in the estimated costs for each bill.
    Estimate prepared by: Federal costs: Matthew Pickford; 
Impact on state, local, and tribal governments: Jon Sperl; 
Impact on the private-sector: Paige Piper/Bach.
    Estimate 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 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. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL

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

           *       *       *       *       *       *       *

          (5)
                  (A) The Special Counsel, in carrying out this 
                subchapter--
                          (i) shall have timely access to all 
                        records, data, reports, audits, 
                        reviews, documents, papers, 
                        recommendations, or other material 
                        available to the applicable agency 
                        which relate to a matter within the 
                        jurisdiction or authority of the 
                        Special Counsel;
                          (ii) may request from any agency the 
                        information or assistance that may be 
                        necessary for the Special Counsel to 
                        carry out the duties and 
                        responsibilities of the Special Counsel 
                        under this subchapter; and
                          (iii) may require, during an 
                        investigation, review, or inquiry of an 
                        agency, any employee of the agency to 
                        provide to the Special Counsel any 
                        record or other information that 
                        relates to a matter within the 
                        jurisdiction or authority of the 
                        Special Counsel.
                  (B)
                          (i) A claim of common law privilege 
                        by an agency, or an officer or employee 
                        of an agency, shall not prevent the 
                        Special Counsel from obtaining any 
                        material described in subparagraph 
                        (A)(i) with respect to the agency.
                          (ii) The submission of material 
                        described in subparagraph (A)(i) by an 
                        agency to the Special Counsel may not 
                        be deemed to waive any assertion of 
                        privilege by the agency against a non-
                        Federal entity or against an individual 
                        in any other proceeding.
                          (iii) With respect to any record or 
                        other information made available to the 
                        Special Counsel by an agency under 
                        subparagraph (A), the Special Counsel 
                        may only disclose the record or 
                        information for a purpose that is in 
                        furtherance of any authority provided 
                        to the Special Counsel in this 
                        subchapter.
          (6) The Special Counsel shall submit to the Committee 
        on Homeland Security and Governmental Affairs of the 
        Senate, the Committee on Oversight and Government 
        Reform of the House of Representatives, and each 
        committee of Congress with jurisdiction over the 
        applicable agency a report regarding any case of 
        contumacy or failure to comply with a request submitted 
        by the Special Counsel under paragraph (5)(A).

           *       *       *       *       *       *       *

    (i) The Special Counsel shall enter into at least 1 
agreement with the Inspector General of an agency under which--
          (1) the Inspector General shall--
                  (A) receive, review, and investigate 
                allegations of prohibited personnel practices 
                or wrongdoing filed by employees of the Office 
                of Special Counsel; and
                  (B) develop a method for an employee of the 
                Office of Special Counsel to directly 
                communicate with the Inspector General; and
          (2) the Special Counsel--
                  (A) may not require an employee of the Office 
                of Special Counsel to seek authorization or 
                approval before directly contacting the 
                Inspector General in accordance with the 
                agreement; and
                  (B) may reimburse the Inspector General for 
                services provided under the agreement.

SEC. 1213. PROVISIONS RELATING TO DISCLOSURES OF VIOLATIONS OF LAW, 
                    GROSS MISMANAGEMENT, AND CERTAIN OTHER MATTERS.

    (a) * * *
    (b) Whenever the Special Counsel receives information of a 
type described in subsection (a) of this section, the Special 
Counsel shall review such information and, within [15 days] [45 
days] after receiving the information, determine whether there 
is a substantial likelihood that the information discloses a 
violation of any law, rule, or regulation, or gross 
mismanagement, gross waste of funds, abuse of authority, or 
substantial and specific danger to public health and safety.
    (c) * * *
    (d) * * *
    (e)
          (1) [Any such report] Any report required under 
        subsection (c) or paragraph (5) of this subsection 
        shall be submitted to the Special Counsel, and the 
        Special Counsel shall transmit a copy to the 
        complainant, except as provided under subsection (f) of 
        this section. The complainant may submit comments to 
        the Special Counsel on the agency report within 15 days 
        of having received a copy of the report.
          [(2) Upon receipt of any report of the head of an 
        agency required under subsection (c) of this section, 
        the Special Counsel shall review the report and 
        determine whether--
                  [(A) the findings of the head of the agency 
                appear reasonable; and
                [(B) the report of the agency under subsection 
                (c)(1) of this section contains the information 
                required under subsection (d) of this section.]
          (2) Upon receipt of any report that the head of an 
        agency is required to submit under subsection (c), the 
        Special Counsel shall review the report and determine 
        whether--
                  (A) the findings of the head of the agency 
                appear reasonable; and
                  (B) if the special Counsel requires the head 
                of the agency to submit a supplemental report 
                under paragraph (5), the reports submitted by 
                the head of the agency collectively contain the 
                information required under subsection (d).
          (3) The Special Counsel shall transmit any [agency 
        report received pursuant to subsection (c) of this 
        section] report submitted to the Special Counsel by the 
        head of an agency under subsection (c) or paragraph (5) 
        of this subsection, any comments provided by the 
        complainant pursuant to subsection (e)(1), and any 
        appropriate comments or recommendations by the Special 
        Counsel to the President and the congressional 
        committees with jurisdiction over the agency which the 
        disclosure involves.
          (4) * * *
          (5) If after conducting a review of a report under 
        paragraph (2), the Special counsel concludes that the 
        Special Counsel requires additional information or 
        documentation to determine whether the report submitted 
        by the head of an agency is reasonable and sufficient, 
        the Special Counsel may request that the head of the 
        agency submit a supplemental report--
                  (A) containing the additional information or 
                documentation identified by the Special 
                Counsel; and
                  (B) which the head of the agency shall submit 
                to the Special Counsel within a period of time 
                specified by the Special Counsel.
    (f) * * *
    (g) * * *
    [(h) The identity of any individual who makes a disclosure 
described in subsection (a) may not be disclosed by the Special 
Counsel without such individual's consent unless the Special 
Counsel determines that the disclosure of the individual's 
identity is necessary because of an imminent danger to public 
health or safety or imminent violation of any criminal law.]
    (h) The Special Counsel may not respond to any inquiry or 
disclose any information about any person who makes a 
disclosure under this section except in accordance with section 
552a or as required by any other provision of Federal law.

           *       *       *       *       *       *       *

SEC. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE 
                    ACTION.

    (a) * * *
          (1) * * *
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) No later than 10 days before the Special 
                Counsel terminates any investigation of a 
                prohibited personnel practice other than a 
                termination of an investigation described in 
                paragraph (6)(A), the Special Counsel shall 
                provide a written status report to the person 
                who made the allegation of the proposed 
                findings of fact and legal conclusions. The 
                person may submit written comments about the 
                report to the Special Counsel. The Special 
                Counsel shall not be required to provide a 
                subsequent written status report under this 
                subparagraph after the submission of such 
                written comments.

           *       *       *       *       *       *       *

          (6)
                  (A) Not later than 30 days after receiving an 
                allegation of a prohibited personnel practice 
                under paragraph (1), the Special Counsel may 
                terminate an investigation of the allegation 
                without further inquiry or an opportunity for 
                the individual who submitted the allegation to 
                respond if the Special Counsel determines 
                that--
                          (i) the same allegation, based on the 
                        same set of facts and circumstances had 
                        previously been--
                                  (I)
                                          (aa) made by the 
                                        individual; and
                                          (bb) investigated by 
                                        the Special Counsel; or
                                  (II) filed by the individual 
                                with the Merit Systems 
                                Protection Board;
                          (ii) the Special Counsel does not 
                        have jurisdiction to investigate the 
                        allegation; or
                          (iii) the individual knew or should 
                        have known of the alleged prohibited 
                        personnel practice on or before the 
                        date that is 3 years before the date on 
                        which the Special Counsel received the 
                        allegation.
                  (B) Not later than 30 days after the date on 
                which the Special Counsel terminates an 
                investigation under subparagraph (A), the 
                Special Counsel shall provide a written 
                notification to the individual who submitted 
                the allegation of a prohibited personnel 
                practice that states the basis of the Special 
                Counsel for terminating the investigation.

           *       *       *       *       *       *       *

    (i) The Special Counsel may petition the Board to order 
corrective action, including fees, costs, or damages reasonably 
incurred by an employee due to an investigation of the employee 
by an agency, if the investigation by an agency was commenced, 
expanded, or extended in retaliation for a disclosure or 
protected activity described under section 2302(b)(8) or 
section 2302(b)(9)(A)(i), (B), (C), or (D), even if no 
personnel action, as defined under section 2302(a), is taken or 
not taken.

           *       *       *       *       *       *       *

SEC. 1218. ANNUAL REPORT.

    [The Special Counsel shall submit an annual report to the 
Congress on the activities of the Special Counsel, including 
the number, types, and disposition of allegations of prohibited 
personnel practices filed with it, investigations conducted by 
it, cases in which it did not make a determination whether 
there are reasonable grounds to believe that a prohibited 
personnel practice has occurred, exists, or is to be taken 
within the 240-day period specified in section 
1214(b)(2)(A)(i), and actions initiated by it before the Merit 
Systems Protection Board, as well as a description of the 
recommendations and reports made by it to other agencies 
pursuant to this subchapter, and the actions taken by the 
agencies as a result of the reports or recommendations. The 
report required by this section shall include whatever 
recommendations for legislation or other action by Congress the 
Special Counsel may consider appropriate.] The Special Counsel 
shall submit to Congress, on an annual basis, a report on the 
activities of the Special Counsel, which shall include, for the 
year preceding the submission of the report--
          (1) the number, types, and disposition of allegations 
        of prohibited personnel practices filed with the 
        Special Counsel and the costs of resolving such 
        allegations;
          (2) the number of investigations conducted by the 
        Special Counsel;
          (3) the number of stays or disciplinary actions 
        negotiated with agencies by the Special Counsel;
          (4) the number of subpoenas issued by the Special 
        Counsel;
          (5) the number of instances in which the Special 
        Counsel reopened an investigation after the Special 
        Counsel had made an initial determination with respect 
        to the investigation;
          (6) the actions that resulted from reopening 
        investigations as described in paragraph (5);
          (7) the number of instances in which the Special 
        Counsel did not make a determination before the end of 
        the 240-day period described in section 
        1214(b)(2)(A)(i) regarding whether there were 
        reasonable grounds to believe that a prohibited 
        personnel practice had occurred, existed, or was to be 
        taken;
          (8) a description of the recommendations and reports 
        made by the Special Counsel to other agencies under 
        this subchapter and the actions taken by the agencies 
        as a result of the recommendations or reports;
          (9) the number of--
                  (A) actions initiated before the Merit 
                Systems Protection Board, including the number 
                of corrective action petitions and disciplinary 
                complaints initiated; and
                  (B) stays and extensions of stays obtained 
                from the Merit Systems Protection Board;
          (10) the number of prohibited personnel practice 
        complaints that resulted in--
                  (A) a favorable action for the complainant , 
                organized by actions in--
                          (i) complaints dealing with reprisals 
                        against whistleblowers; and
                          (ii) all other complaints; and
                  (B) a favorable outcome for the complainant, 
                organized by outcomes in--
                          (i) complaints dealing with reprisals 
                        against whistleblowers; and
                          (ii) all other complaints;
          (11) the number of corrective actions that the 
        Special Counsel required an agency to take after a 
        finding by the Special Counsel of a prohibited 
        personnel practices, as defined in section 2302(b); and
          (12) the results for the Office of Special Counsel of 
        any employee viewpoint survey conducted by the Office 
        of Personnel Management or any other agency.

SEC. 1219. PUBLIC INFORMATION.

    (a)
          (1) [a list of noncriminal matters referred to heads 
        of agencies under subsection (c) of section 1213, 
        together with reports from heads of agencies under 
        subsection (c)(1)(B) of such section relating to such 
        matters;] a list of any noncriminal matters referred to 
        the head of an agency under section 1213(c), together 
        with--
                  (A) a copy of the information transmitted to 
                the head of the agency under section 
                1213(c)(1);
                  (B) any report from the agency under section 
                1213(c)(1)(B) relating to the matter;
                  (C) if appropriate, not otherwise prohibited 
                by law, and consented to by the complainant, 
                any comments from the complainant under section 
                1213(e)(1) relating to the matter; and
                  (D) the comments or recommendations of the 
                Special Counsel under paragraph (3) or (4) of 
                section 1213(e).

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

Subpart A--General Provisions

           *       *       *       *       *       *       *

CHAPTER 23--MERIT SYSTEMS PRINCIPLES

           *       *       *       *       *       *       *

SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

    (a) * * *
          (1) * * *
          (2) * * *
                  (A) * * *
                          (i) * * *

           *       *       *       *       *       *       *

                          (xi) the implementation or 
                        enforcement of any nondisclosure 
                        policy, form, or agreement; [and]
                          (xii) for the purposes of paragraph 
                        (8) or (9) of subsection (b), the 
                        accessing of a medical record of the 
                        employee or applicant for employment; 
                        and
                          [xii] (xiii) * * *

           *       *       *       *       *       *       *

    (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;

           *       *       *       *       *       *       *

    [(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.]
    (c)
          (1) In this subsection--
                  (A) the term ``new employee'' means an 
                individual--
                          (i) appointed to a position as an 
                        employee on or after the date of 
                        enactment of the Office of Special 
                        Counsel Reauthorization Act of 2016; 
                        and
                          (ii) who has not previously served as 
                        an employee; and
                  (B) the term ``whistleblower protections'' 
                means the protections against and remedies for 
                a prohibited personnel practice described in 
                paragraph (8) or subparagraph (A)(i), (B), (C), 
                or (D) of paragraph (9) of subsection (b).
          (2) The head of each agency shall be responsible 
        for--
                  (A) preventing prohibited personnel 
                practices;
                  (B) complying with and enforcing applicable 
                civil service laws, rules, and regulations, and 
                other aspects of personnel management; and
                  (C) 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 the employees under this chapter and chapter 
                12, including--
                          (i) information with respect to 
                        whistleblower protections available to 
                        new employees during a probationary 
                        period;
                          (ii) the role of the Office of 
                        Special Counsel and the Merit Systems 
                        Protection Board with respect to 
                        whistleblower protections; and
                          (iii) the means by which, with 
                        respect to information that is 
                        otherwise required by law or Executive 
                        order to be kept classified in the 
                        interest of national defense or the 
                        conduct of foreign affairs, an employee 
                        may make a lawful disclosure of the 
                        information to--
                                  (I) the Special Counsel;
                                  (II) the Inspector General of 
                                an agency;
                                  (III) Congress; or
                                  (IV) another employee of the 
                                agency who is designated to 
                                receive such a disclosure.
          (3) The head of each agency shall ensure that the 
        information described in paragraph (2) is provided to 
        each new employee of the agency not later than 180 days 
        after the date on which the new employee is appointed.
          (4) 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 such 
        portal exists.
          (5) Any employee to whom the head of an agency 
        delegates authority for any aspect of personnel 
        management shall, within the limits of the scope of the 
        delegation, be responsible for the activities described 
        in paragraph (2).

           *       *       *       *       *       *       *

Subpart C--Employee Performance

           *       *       *       *       *       *       *

CHAPTER 43--PERFORMANCE APPRAISAL

           *       *       *       *       *       *       *

Subchapter I--General Provisions

           *       *       *       *       *       *       *

SEC. 4301. DEFINITIONS.

    [For the purpose of] Except as otherwise expressly 
provided, for the purpose of this subchapter--

           *       *       *       *       *       *       *

SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS.

    (a) * * *
    (b)
          (1) The head of each agency, in consultation with the 
        Director of the Office of Personnel Management and the 
        Special Counsel, shall develop criteria that--
                  (A) the head of the agency shall use as a 
                critical element for establishing the job 
                requirements of a supervisory employee; and
                  (B) promote the protection of whistleblowers.
          (2) The criteria required under paragraph (1) shall 
        include principles for the protection of 
        whistleblowers, such as the degrees to which 
        supervisory employees--
                  (A) respond constructively when employees of 
                the agency make disclosures described in 
                subparagraph (A) or (B) of section 2302(b)(8);
                  (B) take responsible actions to resolve such 
                disclosures; and
                  (C) foster an environment in which employees 
                of the agency feel comfortable making such 
                disclosures to supervisory employees or other 
                appropriate authorities.
          (3) In this subsection--
                  (A) the term ``agency'' means any entity the 
                employees of which are covered by paragraphs 
                (8) and (9) of section 2302(b), without regard 
                to whether any other provision of this section 
                is applicable to the entity;
                  (B) the term ``supervisory employee'' means 
                an employee who would be a supervisor, as 
                defined in section 7103(a), if the agency 
                employing the employee was an agency for 
                purposes of chapter 71; and
                  (C) the term ``whistleblower'' means an 
                employee who makes a disclosure described in 
                section 2302(b)(8).
    [b] (c) * * *
    [c] (d) * * *

           *       *       *       *       *       *       *

Subchapter II--Performance Appraisal in the Senior Executive Service

           *       *       *       *       *       *       *

SEC. 4313. CRITERIA FOR PERFORMANCE APPRAISALS.

          (1) * * *

           *       *       *       *       *       *       *

          (4) other indications of the effectiveness, 
        productivity, and performance quality of the employees 
        for whom the senior executive is responsible; [and]
          (5) meeting affirmative action goals, achievement of 
        equal employment opportunity requirements, and 
        compliance with the merit systems principles set forth 
        under section 2301 of this title[.]; and
          (6) protecting whistleblowers, as described in 
        section 4302(b)(2).

           *       *       *       *       *       *       *

Subpart F--Labor-Management and Employee Relations

           *       *       *       *       *       *       *

CHAPTER 77--APPEALS

           *       *       *       *       *       *       *

SEC. 7701. APPELLATE PROCEDURES.

    (a) * * *

           *       *       *       *       *       *       *

    (k)
          (1) The Board has authority to review on the merits 
        an appeal by an employee or applicant for employment of 
        an action arising from a determination that the 
        employee or applicant for employment is ineligible for 
        a sensitive position if--
                  (A) the sensitive position does not require a 
                security clearance or access to classified 
                information; and 
                  (B) such action is otherwise appealable. 
          (2) In this subsection, the term ``sensitive 
        position'' means a position designated as a sensitive 
        position under Executive Order 10450 (5 U.S.C. 7311 
        note), or any successor thereto.
    [k](l) * * *

           *       *       *       *       *       *       *
```