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[House Report 115-67]
[From the U.S. Government Publishing Office]

115th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {       115-67

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

 
                          FOLLOW THE RULES ACT

                                _______
                                

 March 29, 2017.--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. 657]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 657) 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 with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     3
Committee Consideration..........................................     4
Roll Call Votes..................................................     4
Application of Law to the Legislative Branch.....................     4
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..............................     5
Federal Advisory Committee Act...................................     5
Unfunded Mandate Statement.......................................     5
Earmark Identification...........................................     5
Committee Estimate...............................................     5
Budget Authority and Congressional Budget Office Cost Estimate...     5
Changes in Existing Law Made by the Bill as Reported.............     6

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Follow the Rules Act''.

SEC. 2. PROHIBITED PERSONNEL ACTION BASED ON ORDERING INDIVIDUAL TO 
                    VIOLATE RULE OR REGULATION.

  (a) In General.--Subparagraph (D) of section 2302(b)(9) of title 5, 
United States Code, is amended by inserting ``, rule, or regulation'' 
after ``law''.
  (b) Technical Correction.--Such subparagraph is further amended by 
striking ``for''.

                     Committee Statement and Views

                          PURPOSE AND SUMMARY

    H.R. 657, the Follow the Rules Act, clarifies that the 
prohibition against certain personnel actions includes 
personnel actions taken against any employee or applicant for 
employment for refusing to obey an order that would violate 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 was an explicit rejection of the general policy 
for federal employees to ``obey first, grieve later.'' The 
provision has not been invoked frequently.
---------------------------------------------------------------------------
    \1\Whistleblower Prot. Act of 1989, Pub. L. No. 101-12 Sec. 4(b), 
103 Stat. 16, 32 (1989). The provision may have played a role in Merit 
Systems Protection Board case law that indicated an agency must show an 
employee willfully refused to obey an order entitled to be obeyed 
(emphasis added). Bonanova v. Dep't of Education, 49 M.S.P.R. 294, 302 
(1991).
---------------------------------------------------------------------------
    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 a complaint 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 thus 
the Board did not have jurisdiction to hear the case. The 
administrative judge originally disagreed and subsequently 
issued an order on October 24, 2014, exercising jurisdiction. 
Shortly after a hearing began on the merits, however, the 
Supreme Court issued a January 21, 2015 decision in Department 
of Homeland Security v. MacLean.\2\ 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 judge issued a 
decision reversing her original position that the Board had 
jurisdiction. On August 6, 2015, the administrative judge 
issued a final decision citing the MacLean case as a basis for 
finding that ``law,'' as used in Sec. 2302(b)(9), could not 
include a rule or regulation, and thus that the Board lacked 
jurisdiction.\3\
---------------------------------------------------------------------------
    \2\135 S. Ct. 913 (2015).
    \3\Rainey v. Dep't of State, 122 M.S.P.R. 592 (2015).
---------------------------------------------------------------------------
    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.\4\
---------------------------------------------------------------------------
    \4\Rainey v. Merit Sys. Prot. Bd., 824 F.3d 1359 (Fed. Cir. 2016).

    The Follow the Rules Act was introduced to clarify 
Congress's original intent with respect to this provision of 
the Whistleblower Protection Act of 1989.

                          LEGISLATIVE HISTORY

    In the 114th Congress, Representative Sean Duffy (R-WI) 
introduced the Follow the Rules Act as H.R. 6186 on September 
27, 2016. This bill was referred to the Committee on Oversight 
and Government Reform, which on November 16, 2016 favorably 
reported the bill without amendment by voice vote. On November 
30, 2016, the House passed H.R. 6186 under suspension of the 
rules.
    In the 115th Congress, Representative Duffy reintroduced 
the Follow the Rules Act, this time as H.R. 657, on January 24, 
2017. This bill was again referred to the Committee on 
Oversight and Government Reform, which adopted an Amendment in 
the Nature of a Substitute and favorably reported the bill as 
amended by voice vote on February 2, 2017.

                           Section-by-Section

Section 1. Short title

    The 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 amends 5 U.S.C. Sec. 2302(b)(9)(D) by 
inserting the language ``, rule, or regulation'' after ``law'' 
and makes a technical correction to remove the word ``for.'' 
This section also specifies that the amendment will only apply 
to personnel actions after the date of enactment.

                       Explanation of Amendments

    Because of the Committee's view that this legislation 
clarifies Congress's original intent in passing the 
Whistleblower Protection Act of 1989, Chairman Jason Chaffetz 
(R-UT) offered an amendment in the nature of a substitute. The 
substitute bill does not include Section 2(c), which regarded 
application of the bill only applying to personnel actions 
occurring after the date of the Act's enactment. The amendment 
was favorably adopted by voice vote.

  Amendment in the Nature of a Substitute to H.R. 657 Offered by Mr. 
                            Chaffetz of Utah

  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Follow the Rules Act''.

SEC. 2. PROHIBITED PERSONNEL ACTION BASED ON ORDERING INDIVIDUAL TO 
                    VIOLATE RULE OR REGULATION.

  (a) In General.--Subparagraph (D) of section 2302(b)(9) of 
title 5, United States Code, is amended by inserting ``, rule, 
or regulation'' after ``law''.
  (b) Technical Correction.--Such subparagraph is further 
amended by striking ``for''.

                        Committee Consideration

    On February 2, 2017, the Committee met in open session and 
ordered reported favorably the bill, H.R. 657, as amended, by 
voice vote, a quorum being present.

                            Roll Call Votes

    There were no roll call votes during consideration of H.R. 
657.

              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 extends the prohibition against certain personnel 
actions to include personnel actions taken against any employee 
or applicant for employment for refusing to obey an order that 
would violate a rule or regulation. 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 
goals or objectives are to amend title 5, United States Code, 
to extend certain protections against prohibited personnel 
practices, and for other purposes.

                    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 
Mandate 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

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
this bill. However, clause 3(d)(2)(B) of that Rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974.

     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 received 
the following cost estimate for this bill from the Director of 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 13, 2017.
Hon. Jason Chaffetz,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 657, 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.

H.R. 657--Follow the Rules Act

    H.R. 657 would expand the protections against retaliation 
that are currently given to whistleblowers who refuse to 
violate federal laws. Under the bill those protections would 
extend 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 H.R. 657 would not affect revenues.
    CBO estimates that enacting H.R. 657 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 657 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

         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]
```