II 

Calendar No. 93 

115TH CONGRESS 

1ST SESSION S. 582 

[Report No. 115–74] 

To reauthorize the Office of Special Counsel, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 8, 2017 

Mr. JOHNSON (for himself, Mrs. MCCASKILL, Mr. GRASSLEY, Mr. DAINES, 

and Mr. WYDEN) introduced the following bill; which was read twice and 

referred to the Committee on Homeland Security and Governmental Affairs 

MAY 18, 2017 

Reported by Mr. JOHNSON, with amendments 

[Omit the part struck through and insert the part printed in italic] 

A BILL 

To reauthorize the Office of Special Counsel, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Office of Special Coun5 sel Reauthorization Act of 2017’’. 


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1 SEC. 2. ADEQUATE ACCESS OF SPECIAL COUNSEL TO IN2 FORMATION. 

3 Section 1212(b) of title 5, United States Code, is 

4 amended by adding at the end the following: 

5 ‘‘(5)(A) Except as provided in subparagraph (B), the 

6 Special Counsel, in carrying out this subchapter, is au7 thorized to— 

8 ‘‘(i) have timely access to all records, data, re9 ports, audits, reviews, documents, papers, rec10 ommendations, or other material available to the ap11 plicable agency that relate to an investigation, re12 view, or inquiry conducted under— 

13 ‘‘(I) section 1213, 1214, 1215, or 1216 of 

14 this title; or 

15 ‘‘(II) section 4324(a) of title 38; 

16 ‘‘(ii) request from any agency the information 

17 or assistance that may be necessary for the Special 

18 Counsel to carry out the duties and responsibilities 

19 of the Special Counsel under this subchapter; and 

20 ‘‘(iii) require, during an investigation, review, or 

21 inquiry of an agency, the agency to provide to the 

22 Special Counsel any record or other information that 

23 relates to an investigation, review, or inquiry con24 ducted under— 

25 ‘‘(I) section 1213, 1214, 1215, or 1216 of 

26 this title; or 


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1 ‘‘(II) section 4324(a) of title 38. 

2 ‘‘(B)(i) The authorization of the Special Counsel 

3 under subparagraph (A) shall not apply with respect to 

4 any entity that is an element of the intelligence commu5 nity, as defined in section 3 of the National Security Act 

6 of 1947 (50 U.S.C. 3003), unless the Special Counsel is 

7 investigating, or otherwise carrying out activities relating 

8 to the enforcement of, an action under subchapter III of 

9 chapter 73. 

10 ‘‘(ii) The Attorney General or an Inspector General 

11 may withhold from the Special Counsel material described 

12 in subparagraph (A) if— 

13 ‘‘(I) disclosing the material could reasonably be 

14 expected to interfere with a criminal investigation or 

15 prosecution that is ongoing as of the date on which 

16 the Special Counsel submits a request for the mate17 rial; and 

18 ‘‘(II) the Attorney General or the Inspector 

19 General, as applicable, submits to the Special Coun20 sel a written report that describes— 

21 ‘‘(aa) the material being withheld; and 

22 ‘‘(bb) the reason that the material is being 

23 withheld. 

24 ‘‘(C)(i) A claim of common law privilege by an agen25 cy, or an officer or employee of an agency, shall not preVerDate Sep 11 2014 21:25 May 18, 2017 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S582.RS S582

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1 vent the Special Counsel from obtaining any material de2 scribed in subparagraph (A)(i) with respect to the agency. 

3 ‘‘(ii) The submission of material described in sub4 paragraph (A)(i) by an agency to the Special Counsel may 

5 not be deemed to waive any assertion of privilege by the 

6 agency against a non-Federal entity or against an indi7 vidual in any other proceeding. 

8 ‘‘(iii) With respect to any record or other information 

9 made available to the Special Counsel by an agency under 

10 subparagraph (A), the Special Counsel may only disclose 

11 the record or information for a purpose that is in further12 ance of any authority provided to the Special Counsel in 

13 this subchapter. 

14 ‘‘(6) The Special Counsel shall submit to the Com15 mittee on Homeland Security and Governmental Affairs 

16 of the Senate, the Committee on Oversight and Govern17 ment Reform of the House of Representatives, and each 

18 committee of Congress with jurisdiction over the applica19 ble agency a report regarding any case of contumacy or 

20 failure to comply with a request submitted by the Special 

21 Counsel under paragraph (5)(A).’’. 

22 SEC. 3. INFORMATION ON WHISTLEBLOWER PROTECTIONS. 

23 (a) AGENCY RESPONSIBILITIES.—Section 2302 of 

24 title 5, United States Code, is amended by striking sub25 section (c) and inserting the following: 


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1 ‘‘(c)(1) In this subsection— 

2 ‘‘(A) the term ‘new employee’ means an indi3 vidual— 

4 ‘‘(i) appointed to a position as an employee 

5 on or after the date of enactment of the Office 

6 of Special Counsel Reauthorization Act of 2017; 

7 and 

8 ‘‘(ii) who has not previously served as an 

9 employee; and 

10 ‘‘(B) the term ‘whistleblower protections’ means 

11 the protections against and remedies for a prohibited 

12 personnel practice described in paragraph (8) or 

13 subparagraph (A)(i), (B), (C), or (D) of paragraph 

14 (9) of subsection (b). 

15 ‘‘(2) The head of each agency shall be responsible 

16 for— 

17 ‘‘(A) preventing prohibited personnel practices; 

18 ‘‘(B) complying with and enforcing applicable 

19 civil service laws, rules, and regulations, and other 

20 aspects of personnel management; and 

21 ‘‘(C) ensuring, in consultation with the Special 

22 Counsel and the Inspector General of the agency, 

23 that employees of the agency are informed of the 

24 rights and remedies available to the employees under 

25 this chapter and chapter 12, including— 


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1 ‘‘(i) information with respect to whistle2 blower protections available to new employees 

3 during a probationary period; 

4 ‘‘(ii) the role of the Office of Special Coun5 sel and the Merit Systems Protection Board 

6 with respect to whistleblower protections; and 

7 ‘‘(iii) the means by which, with respect to 

8 information that is otherwise required by law or 

9 Executive order to be kept classified in the in10 terest of national defense or the conduct of for11 eign affairs, an employee may make a lawful 

12 disclosure of the information to— 

13 ‘‘(I) the Special Counsel; 

14 ‘‘(II) the Inspector General of an 

15 agency; 

16 ‘‘(III) Congress; or 

17 ‘‘(IV) another employee of the agency 

18 who is designated to receive such a disclo19 sure. 

20 ‘‘(3) The head of each agency shall ensure that the 

21 information described in paragraph (2) is provided to each 

22 new employee of the agency not later than 180 days after 

23 the date on which the new employee is appointed. 

24 ‘‘(4) The head of each agency shall make available 

25 information regarding whistleblower protections applicable 


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1 to employees of the agency on the public website of the 

2 agency and on any online portal that is made available 

3 only to employees of the agency, if such portal exists. 

4 ‘‘(5) Any employee to whom the head of an agency 

5 delegates authority for any aspect of personnel manage6 ment shall, within the limits of the scope of the delegation, 

7 be responsible for the activities described in paragraph 

8 (2).’’. 

9 (b) TRAINING FOR SUPERVISORS.— 

10 (1) DEFINITIONS.—In this subsection— 

11 (A) the term ‘‘agency’’ means any entity 

12 the employees of which are covered by para13 graphs (8) and (9) of section 2302(b) of title 5, 

14 United States Code, without regard to whether 

15 any other provision of that title is applicable to 

16 the entity; and 

17 (B) the term ‘‘whistleblower protections’’ 

18 has the meaning given the term in section 

19 2302(c)(1)(B) of title 5, United States Code, as 

20 amended by subsection (a). 

21 (2) TRAINING REQUIRED.—The head of each 

22 agency, in consultation with the Special Counsel and 

23 the Inspector General of that agency (or, in the case 

24 of an agency that does not have an Inspector GenVerDate Sep 11 2014 21:25 May 18, 2017 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S582.RS S582

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1 eral, the senior ethics official of that agency), shall 

2 provide the training described in paragraph (3). 

3 (3) TRAINING DESCRIBED.—The training de4 scribed in this paragraph shall— 

5 (A) cover the manner in which the agency 

6 shall respond to a complaint alleging a violation 

7 of whistleblower protections that are available 

8 to employees of the agency; and 

9 (B) be provided— 

10 (i) to each employee of the agency 

11 who— 

12 (I) is appointed to a supervisory 

13 position in the agency; and 

14 (II) before the appointment de15 scribed in subclause (I), had not 

16 served in a supervisory position in the 

17 agency; and 

18 (ii) on an annual basis to all employ19 ees of the agency who serve in supervisory 

20 positions in the agency. 

21 (c) INFORMATION ON APPEAL RIGHTS.— 

22 (1) IN GENERAL.—Any notice provided to an 

23 employee under section 7503(b)(1), section 

24 7513(b)(1), or section 7543(b)(1) of title 5, United 


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1 States Code, shall include detailed information with 

2 respect to— 

3 (A) the right of the employee to appeal an 

4 action brought under the applicable section; 

5 (B) the forums in which the employee may 

6 file an appeal described in subparagraph (A); 

7 and 

8 (C) any limitations on the rights of the 

9 employee that would apply because of the forum 

10 in which the employee decides to file an appeal. 

11 (2) DEVELOPMENT OF INFORMATION.—The in12 formation described in paragraph (1) shall be devel13 oped by the Director of the Office of Personnel Man14 agement, in consultation with the Special Counsel, 

15 the Merit Systems Protection Board, and the Equal 

16 Employment Opportunity Commission. 

17 SEC. 4. ADDITIONAL WHISTLEBLOWER PROVISIONS. 

18 (a) PROHIBITED PERSONNEL PRACTICES.—Section 

19 2302 of title 5, United States Code, is amended— 

20 (1) in subsection (b)— 

21 (A) in paragraph (9)— 

22 (i) in subparagraph (C), by inserting 

23 ‘‘(or any other component responsible for 

24 internal investigation or review)’’ after 

25 ‘‘Inspector General’’; and 


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1 (ii) in subparagraph (D), by inserting 

2 ‘‘, rule, or regulation’’ after ‘‘law’’; 

3 (B) in paragraph (12), by striking ‘‘or’’ at 

4 the end; 

5 (C) in paragraph (13), by striking the pe6 riod at the end and inserting ‘‘; or’’; and 

7 (D) by inserting after paragraph (13) the 

8 following: 

9 ‘‘(14) access the medical record of another em10 ployee or an applicant for employment as a part of, 

11 or otherwise in furtherance of, any conduct de12 scribed in paragraphs (1) through (13).’’; and 

13 (2) in subsection (f)— 

14 (A) in paragraph (1)— 

15 (i) in subparagraph (E), by striking 

16 ‘‘or’’ at the end; 

17 (ii) by redesignating subparagraph 

18 (F) as subparagraph (G); and 

19 (iii) by inserting after subparagraph 

20 (E) the following: 

21 ‘‘(F) the disclosure was made before the date 

22 on which the individual was appointed or applied for 

23 appointment to a position; or’’; and 

24 (B) by striking paragraph (2) and insert25 ing the following: 


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1 ‘‘(2) If a disclosure is made during the normal course 

2 of duties of an employee, the principal job function of 

3 whom is to regularly investigate and disclose wrongdoing 

4 (in this paragraph referred to as the ‘disclosing em5 ployee’), the disclosure shall not be excluded from sub6 section (b)(8) if the disclosing employee demonstrates that 

7 an employee who has the authority to take, direct other 

8 individuals to take, recommend, or approve any personnel 

9 action with respect to the disclosing employee took, failed 

10 to take, or threatened to take or fail to take a personnel 

11 action with respect to the disclosing employee in reprisal 

12 for the disclosure made by the disclosing employee.’’. 

13 (b) EXPLANATIONS FOR FAILURE TO TAKE AC14 TION.—Section 1213 of title 5, United States Code, is 

15 amended— 

16 (1) in subsection (b), by striking ‘‘15 days’’ and 

17 inserting ‘‘45 days’’; and 

18 (2) in subsection (e)— 

19 (A) in paragraph (1), by striking ‘‘Any 

20 such report’’ and inserting ‘‘Any report re21 quired under subsection (c) or paragraph (5) of 

22 this subsection’’; 

23 (B) by striking paragraph (2) and insert24 ing the following: 


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1 ‘‘(2) Upon receipt of any report that the head of an 

2 agency is required to submit under subsection (c), the Spe3 cial Counsel shall review the report and determine wheth4 er— 

5 ‘‘(A) the findings of the head of the agency ap6 pear reasonable; and 

7 ‘‘(B) if the Special Counsel requires the head of 

8 the agency to submit a supplemental report under 

9 paragraph (5), the reports submitted by the head of 

10 the agency collectively contain the information re11 quired under subsection (d).’’; 

12 (C) in paragraph (3), by striking ‘‘agency 

13 report received pursuant to subsection (c) of 

14 this section’’ and inserting ‘‘report submitted to 

15 the Special Counsel by the head of an agency 

16 under subsection (c) or paragraph (5) of this 

17 subsection’’; and 

18 (D) by adding at the end the following: 

19 ‘‘(5) If, after conducting a review of a report under 

20 paragraph (2), the Special Counsel concludes that the 

21 Special Counsel requires additional information or docu22 mentation to determine whether the report submitted by 

23 the head of an agency is reasonable and sufficient, the 

24 Special Counsel may request that the head of the agency 

25 submit a supplemental report— 


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1 ‘‘(A) containing the additional information or 

2 documentation identified by the Special Counsel; and 

3 ‘‘(B) that the head of the agency shall submit 

4 to the Special Counsel within a period of time speci5 fied by the Special Counsel.’’. 

6 (c) TRANSFER REQUESTS DURING STAYS.— 

7 (1) PRIORITY GRANTED.—Section 1214(b)(1) of 

8 title 5, United States Code, is amended by adding 

9 at the end the following: 

10 ‘‘(E) If the Board grants a stay under subparagraph 

11 (A), the head of the agency employing the employee who 

12 is the subject of the action shall give priority to a request 

13 for a transfer submitted by the employee.’’. 

14 (2) PROBATIONARY EMPLOYEES.—Section 1221 

15 of title 5, United States Code, is amended by adding 

16 at the end the following: 

17 ‘‘(k) If the Board grants a stay under subsection (c) 

18 and the employee who is the subject of the action is in 

19 probationary status, the head of the agency employing the 

20 employee shall give priority to a request for a transfer sub21 mitted by the employee.’’. 

22 (d) RETALIATORY INVESTIGATIONS.—Section 1214 

23 of title 5, United States Code, is amended by adding at 

24 the end the following: 


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1 ‘‘(i) The Special Counsel may petition the Board to 

2 order corrective action, including fees, costs, or damages 

3 reasonably incurred by an employee due to an investiga4 tion of the employee by an agency, if the investigation by 

5 an agency was commenced, expanded, or extended in retal6 iation for a disclosure or protected activity described in 

7 section 2302(b)(8) or subparagraph (A)(i), (B), (C), or 

8 (D) of section 2302(b)(9), even if no without regard to 

9 whether a personnel action, as defined in section 

10 2302(a)(2)(A), is taken or not taken.’’. 

11 SEC. 5. SUICIDE BY EMPLOYEES. 

12 (a) DEFINITIONS.—In this section— 

13 (1) the term ‘‘agency’’ means any entity the 

14 employees of which are covered by paragraphs (8) 

15 and (9) of section 2302(b) of title 5, United States 

16 Code, without regard to whether any other provision 

17 of that title is applicable to the entity; and 

18 (2) the term ‘‘personnel action’’ has the mean19 ing given the term in section 2302(a)(2)(A) of title 

20 5, United States Code. 

21 (b) REFERRAL.— 

22 (1) IN GENERAL.—The head of an agency shall 

23 refer to the Special Counsel, along with any informa24 tion known to the agency regarding the cir25 cumstances described in paragraph (2), any instance 


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1 in which the head of the agency has information in2 dicating that an employee of the agency committed 

3 suicide. 

4 (2) INFORMATION.—The circumstances de5 scribed in this paragraph are as follows: 

6 (A) Before the death of an employee de7 scribed in paragraph (1), the employee made a 

8 disclosure of information that reasonably evi9 dences— 

10 (i) a violation of a law, rule, or regu11 lation; 

12 (ii) gross mismanagement; 

13 (iii) a gross waste of funds; 

14 (iv) an abuse of authority; or 

15 (v) a substantial and specific danger 

16 to public health or safety. 

17 (B) After a disclosure described in sub18 paragraph (A), a personnel action was taken 

19 with respect to the employee who made the dis20 closure. 

21 (c) OFFICE OF SPECIAL COUNSEL REVIEW.—Upon 

22 receiving a referral under subsection (b)(1), the Special 

23 Counsel shall— 


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1 (1) examine whether a personnel action was 

2 taken with respect to an employee because of a dis3 closure described in subsection (b)(2)(A); and 

4 (2) take any action that the Special Counsel de5 termines is appropriate under subchapter II of chap6 ter 12 of title 5, United States Code. 

7 SEC. 6. PROTECTION OF WHISTLEBLOWERS AS CRITERIA 

8 IN PERFORMANCE APPRAISALS. 

9 (a) ESTABLISHMENT OF SYSTEMS.—Section 4302 of 

10 title 5, United States Code, is amended— 

11 (1) by redesignating subsections (b) and (c) as 

12 subsections (c) and (d), respectively; and 

13 (2) by inserting after subsection (a) the fol14 lowing: 

15 ‘‘(b)(1) The head of each agency, in consultation with 

16 the Director of the Office of Personnel Management and 

17 the Special Counsel, shall develop criteria that— 

18 ‘‘(A) the head of the agency shall use as a crit19 ical element for establishing the job requirements of 

20 a supervisory employee; and 

21 ‘‘(B) promote the protection of whistleblowers. 

22 ‘‘(2) The criteria required under paragraph (1) shall 

23 include— 


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1 ‘‘(A) principles for the protection of whistle2 blowers, such as the degree to which supervisory em3 ployees— 

4 ‘‘(i) respond constructively when employees 

5 of the agency make disclosures described in 

6 subparagraph (A) or (B) of section 2302(b)(8); 

7 ‘‘(ii) take responsible actions to resolve the 

8 disclosures described in clause (i); and 

9 ‘‘(iii) foster an environment in which em10 ployees of the agency feel comfortable making 

11 disclosures described in subparagraph (A) 

12 clause (i) to supervisory employees or other ap13 propriate authorities; and 

14 ‘‘(B) for each supervisory employee— 

15 ‘‘(i) whether the agency entered into an 

16 agreement with an individual who alleged that 

17 the supervisory employee committed a prohib18 ited personnel practice; and 

19 ‘‘(ii) if the agency entered into an agree20 ment described in clause (i), the number of in21 stances in which the agency entered into such 

22 an agreement with respect to the supervisory 

23 employee. 

24 ‘‘(3) In this subsection— 


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1 ‘‘(A) the term ‘agency’ means any entity the 

2 employees of which are covered by paragraphs (8) 

3 and (9) of section 2302(b), without regard to wheth4 er any other provision of this section is applicable to 

5 the entity; 

6 ‘‘(B) the term ‘prohibited personnel practice’ 

7 has the meaning given the term in section 

8 2302(a)(1); 

9 ‘‘(C) the term ‘supervisory employee’ means an 

10 employee who would be a supervisor, as defined in 

11 section 7103(a), if the agency employing the em12 ployee was an agency for purposes of chapter 71; 

13 and 

14 ‘‘(D) the term ‘whistleblower’ means an em15 ployee who makes a disclosure described in section 

16 2302(b)(8).’’. 

17 (b) CRITERIA FOR PERFORMANCE APPRAISALS.— 

18 Section 4313 of title 5, United States Code, is amended— 

19 (1) in paragraph (4), by striking ‘‘and’’ at the 

20 end; 

21 (2) in paragraph (5), by striking the period at 

22 the end and inserting ‘‘; and’’; and 

23 (3) by adding at the end the following: 

24 ‘‘(6) protecting whistleblowers, as described in 

25 section 4302(b)(2).’’. 


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1 (c) ANNUAL REPORT TO CONGRESS ON UNACCEPT2 ABLE PERFORMANCE IN WHISTLEBLOWER PROTEC3 TION.— 

4 (1) DEFINITIONS.—In this subsection, the 

5 terms ‘‘agency’’ and ‘‘whistleblower’’ have the mean6 ings given the terms in section 4302(b)(3) of title 5, 

7 United States Code, as amended by subsection (a). 

8 (2) REPORT.—Each agency shall annually sub9 mit to the Committee on Homeland Security and 

10 Governmental Affairs of the Senate, the Committee 

11 on Oversight and Government Reform of the House 

12 of Representatives, and each committee of Congress 

13 with jurisdiction over the agency a report that de14 tails— 

15 (A) the number of performance appraisals, 

16 for the year covered by the report, that deter17 mined that an employee of the agency failed to 

18 meet the standards for protecting whistle19 blowers that were established under section 

20 4302(b) of title 5, United States Code, as 

21 amended by subsection (a); 

22 (B) the reasons for the determinations de23 scribed in subparagraph (A); and 


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1 (C) each performance-based or corrective 

2 action taken by the agency in response to a de3 termination under subparagraph (A). 

4 (d) TECHNICAL AND CONFORMING AMENDMENT.— 

5 Section 4301 of title 5, United States Code, is amended, 

6 in the matter preceding paragraph (1), by striking ‘‘For 

7 the purpose of’’ and inserting ‘‘Except as otherwise ex8 pressly provided, for the purpose of’’. 

9 SEC. 7. DISCIPLINE OF SUPERVISORS BASED ON RETALIA10 TION AGAINST WHISTLEBLOWERS. 

11 (a) IN GENERAL.—Subchapter II of chapter 75 of 

12 title 5, United States Code, is amended by adding at the 

13 end the following: 

14 ‘‘§ 7515. Discipline of supervisors based on retaliation 

15 against whistleblowers 

16 ‘‘(a) DEFINITIONS.—In this section— 

17 ‘‘(1) the term ‘agency’— 

18 ‘‘(A) has the meaning given the term in 

19 section 2302(a)(2)(C), without regard to wheth20 er any other provision of this chapter is applica21 ble to the entity; and 

22 ‘‘(B) does not include any entity that is an 

23 element of the intelligence community, as de24 fined in section 3 of the National Security Act 

25 of 1947 (50 U.S.C. 3003); 


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1 ‘‘(2) the term ‘prohibited personnel action’ 

2 means taking or failing to take an action in violation 

3 of paragraph (8) or (9) of section 2302(b) against 

4 an employee of an agency; and 

5 ‘‘(3) the term ‘supervisor’ means an employee 

6 who would be a supervisor, as defined in section 

7 7103(a), if the entity employing the employee was 

8 an agency. 

9 ‘‘(b) PROPOSED DISCIPLINARY ACTIONS.— 

10 ‘‘(1) IN GENERAL.—If the head of the agency 

11 in which a supervisor is employed, an administrative 

12 law judge, the Merit Systems Protection Board, the 

13 Special Counsel, a judge of the United States, or the 

14 Inspector General of the agency in which a super15 visor is employed has determined that the supervisor 

16 committed a prohibited personnel action, the head of 

17 the agency in which the supervisor is employed, con18 sistent with the procedures required under para19 graph (2)— 

20 ‘‘(A) for the first prohibited personnel ac21 tion committed by the supervisor— 

22 ‘‘(i) shall propose suspending the su23 pervisor for a period that is not less than 

24 3 days; and 


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1 ‘‘(ii) may propose an additional action 

2 determined appropriate by the head of the 

3 agency, including a reduction in grade or 

4 pay; and 

5 ‘‘(B) for the second prohibited personnel 

6 action committed by the supervisor, shall pro7 pose removing the supervisor. 

8 ‘‘(2) PROCEDURES.— 

9 ‘‘(A) NOTICE.—A supervisor against whom 

10 an action is proposed to be taken under para11 graph (1) is entitled to written notice that— 

12 ‘‘(i) states the specific reasons for the 

13 proposed action; and 

14 ‘‘(ii) informs the supervisor about the 

15 right of the supervisor to review the mate16 rial that constitutes the factual support on 

17 which the proposed action is based. 

18 ‘‘(B) ANSWER AND EVIDENCE.— 

19 ‘‘(i) IN GENERAL.—A supervisor who 

20 receives notice under subparagraph (A) 

21 may, not later than 14 days after receiving 

22 the notice, submit an answer and furnish 

23 evidence in support of that answer. 

24 ‘‘(ii) NO EVIDENCE FURNISHED; IN25 SUFFICIENT EVIDENCE FURNISHED.—If, 


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1 after the end of the 14-day period de2 scribed in clause (i), a supervisor does not 

3 furnish any evidence as described in that 

4 clause, or if the head of the agency in 

5 which the supervisor is employed deter6 mines that the evidence furnished by the 

7 supervisor is insufficient, the head of the 

8 agency shall carry out the action proposed 

9 under subparagraph (A) or (B) of para10 graph (1). 

11 ‘‘(C) SCOPE OF PROCEDURES.—An action 

12 carried out under this section— 

13 ‘‘(i) except as provided in clause (ii), 

14 shall be subject to the same requirements 

15 and procedures, including those with re16 spect to an appeal, as an action under sec17 tion 7503, 7513, or 7543; and 

18 ‘‘(ii) shall not be subject to— 

19 ‘‘(I) paragraphs (1) and (2) of 

20 section 7503(b); 

21 ‘‘(II) paragraphs (1) and (2) of 

22 subsection (b) and subsection (c) of 

23 section 7513; and 


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1 ‘‘(III) paragraphs (1) and (2) of 

2 subsection (b) and subsection (c) of 

3 section 7543. 

4 ‘‘(3) NON-DELEGATION.—If the head of an 

5 agency is responsible for determining whether a su6 pervisor has committed a prohibited personnel action 

7 for purposes of paragraph (1), the head of the agen8 cy may not delegate that responsibility.’’. 

9 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

10 The table of sections for subchapter II of chapter 75 of 

11 title 5, United States Code, is amended by inserting after 

12 the item relating to section 7514 the following: 

‘‘7515. Discipline of supervisors based on retaliation against whistleblowers.’’. 

13 SEC. 8. TERMINATION OF CERTAIN INVESTIGATIONS BY 

14 THE OFFICE OF SPECIAL COUNSEL. 

15 Section 1214(a) of title 5, United States Code, is 

16 amended — 

17 (1) in paragraph (1)(D), in the first sentence, 

18 by inserting ‘‘, other than a termination of an inves19 tigation described in paragraph (6)(A),’’ after ‘‘in20 vestigation of a prohibited personnel practice’’; and 

21 (2) by adding at the end the following: 

22 ‘‘(6)(A) Not later Notwithstanding any other provi23 sion of this section, not later than 30 days after receiving 

24 an allegation of a prohibited personnel practice under 

25 paragraph (1), the Special Counsel may terminate an inVerDate Sep 11 2014 21:25 May 18, 2017 Jkt 069200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S582.RS S582

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1 vestigation of the allegation without further inquiry or an 

2 opportunity for the individual who submitted the allega3 tion to respond if the Special Counsel determines that— 

4 ‘‘(i) the same allegation, based on the same set 

5 of facts and circumstances had previously been— 

6 ‘‘(I)(aa) made by the individual; and 

7 ‘‘(bb) investigated by the Special Counsel; 

8 or 

9 ‘‘(II) filed by the individual with the Merit 

10 Systems Protection Board; 

11 ‘‘(ii) the Special Counsel does not have jurisdic12 tion to investigate the allegation; or 

13 ‘‘(iii) the individual knew or should have known 

14 of the alleged prohibited personnel practice on or be15 fore the date that is 3 years before the date on 

16 which the Special Counsel received the allegation. 

17 ‘‘(B) Not later than 30 days after the date on which 

18 the Special Counsel terminates an investigation under sub19 paragraph (A), the Special Counsel shall provide a written 

20 notification to the individual who submitted the allegation 

21 of a prohibited personnel practice that states the basis of 

22 the Special Counsel for terminating the investigation.’’. 


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1 SEC. 9. ALLEGATIONS OF WRONGDOING WITHIN THE OF2 FICE OF SPECIAL COUNSEL. 

3 Section 1212 of title 5, United States Code, is 

4 amended by adding at the end the following: 

5 ‘‘(i) The Special Counsel shall enter into at least one 

6 agreement with the Inspector General of an agency under 

7 which— 

8 ‘‘(1) the Inspector General shall— 

9 ‘‘(A) receive, review, and investigate allega10 tions of prohibited personnel practices or 

11 wrongdoing filed by employees of the Office of 

12 Special Counsel; and 

13 ‘‘(B) develop a method for an employee of 

14 the Office of Special Counsel to directly com15 municate with the Inspector General; and 

16 ‘‘(2) the Special Counsel— 

17 ‘‘(A) may not require an employee of the 

18 Office of Special Counsel to seek authorization 

19 or approval before directly contacting the In20 spector General in accordance with the agree21 ment; and 

22 ‘‘(B) may reimburse the Inspector General 

23 for services provided under the agreement.’’. 

24 SEC. 10. REPORTING REQUIREMENTS. 

25 (a) ANNUAL REPORT.—Section 1218 of title 5, 

26 United States Code, is amended to read as follows: 


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1 ‘‘§ 1218. Annual report 

2 ‘‘The Special Counsel shall submit to Congress, on 

3 an annual basis, a report on the activities of the Special 

4 Counsel, which shall include, for the year preceding the 

5 submission of the report— 

6 ‘‘(1) the number, types, and disposition of alle7 gations of prohibited personnel practices filed with 

8 the Special Counsel and the costs of resolving such 

9 allegations; 

10 ‘‘(2) the number of investigations conducted by 

11 the Special Counsel; 

12 ‘‘(3) the number of stays and disciplinary ac13 tions negotiated with agencies by the Special Coun14 sel; 

15 ‘‘(4) the number of subpoenas issued by the 

16 Special Counsel; 

17 ‘‘(5) the number of instances in which the Spe18 cial Counsel reopened an investigation after the Spe19 cial Counsel had made an initial determination with 

20 respect to the investigation; 

21 ‘‘(6) the actions that resulted from reopening 

22 investigations, as described in paragraph (5); 

23 ‘‘(7) the number of instances in which the Spe24 cial Counsel did not make a determination before 

25 the end of the 240-day period described in section 

26 1214(b)(2)(A)(i) regarding whether there were reaVerDate Sep 11 2014 21:25 May 18, 2017 Jkt 069200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S582.RS S582

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1 sonable grounds to believe that a prohibited per2 sonnel practice had occurred, existed, or was to be 

3 taken; 

4 ‘‘(8) a description of the recommendations and 

5 reports made by the Special Counsel to other agen6 cies under this subchapter and the actions taken by 

7 the agencies as a result of the recommendations or 

8 reports; 

9 ‘‘(9) the number of— 

10 ‘‘(A) actions initiated before the Merit Sys11 tems Protection Board, including the number of 

12 corrective action petitions and disciplinary ac13 tion complaints initiated; and 

14 ‘‘(B) stays and extensions of stays ob15 tained from the Merit Systems Protection 

16 Board; 

17 ‘‘(10) the number of prohibited personnel prac18 tice complaints that resulted in a favorable action 

19 for the complainant, other than a stay or an exten20 sion of a stay, organized by actions in— 

21 ‘‘(A) complaints dealing with reprisals 

22 against whistleblowers; and 

23 ‘‘(B) all other complaints; and 

24 ‘‘(11) the number of prohibited personnel prac25 tice complaints that were resolved by an agreement 


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1 between an agency and an individual, organized by 

2 agency and agency components, in— 

3 ‘‘(A) complaints dealing with reprisals 

4 against whistleblowers; and 

5 ‘‘(B) all other complaints; 

6 ‘‘(12) the number of corrective actions that the 

7 Special Counsel required an agency to take after a 

8 finding by the Special Counsel of a prohibited per9 sonnel practice, as defined in section 2302(a)(1); 

10 and 

11 ‘‘(13) the results for the Office of Special Coun12 sel of any employee viewpoint survey conducted by 

13 the Office of Personnel Management or any other 

14 agency.’’. 

15 (b) PUBLIC INFORMATION.—Section 1219(a)(1) of 

16 title 5, United States Code, is amended to read as follows: 

17 ‘‘(1) a list of any noncriminal matters referred 

18 to the head of an agency under section 1213(c), to19 gether with— 

20 ‘‘(A) a copy of the information transmitted 

21 to the head of the agency under section 

22 1213(c)(1); 

23 ‘‘(B) any report from the agency under 

24 section 1213(c)(1)(B) relating to the matter; 


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1 ‘‘(C) if appropriate, not otherwise prohib2 ited by law, and consented to by the complain3 ant, any comments from the complainant under 

4 section 1213(e)(1) relating to the matter; and 

5 ‘‘(D) the comments or recommendations of 

6 the Special Counsel under paragraph (3) or (4) 

7 of section 1213(e);’’. 

8 (c) NOTICE OF COMPLAINT SETTLEMENTS.—Section 

9 1217 of title 5, United States Code, is amended— 

10 (1) by striking ‘‘The Special Counsel’’ and in11 serting: 

12 ‘‘(a) IN GENERAL.—The Special Counsel’’; and 

13 (2) by adding at the end the following: 

14 ‘‘(b) ADDITIONAL REPORT REQUIRED.— 

15 ‘‘(1) IN GENERAL.—If an allegation submitted 

16 to the Special Counsel is resolved by an agreement 

17 between an agency and an individual, the Special 

18 Counsel shall submit to Congress and each congres19 sional committee with jurisdiction over the agency a 

20 report regarding the agreement. 

21 ‘‘(2) CONTENTS.—The report required under 

22 paragraph (1) shall identify, with respect to an 

23 agreement described in that paragraph— 

24 ‘‘(A) the agency that entered into the 

25 agreement; 


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1 ‘‘(B) the position and employment location 

2 of the employee who submitted the allegation 

3 that formed the basis of the agreement; 

4 ‘‘(C) the position and employment location 

5 of any employee alleged by an employee de6 scribed in subparagraph (B) to have committed 

7 a prohibited personnel practice, as defined in 

8 section 2302(a)(1); 

9 ‘‘(D) a description of the allegation de10 scribed in subparagraph (B); and 

11 ‘‘(E) whether the agency that entered into 

12 the agreement has agreed to pursue any dis13 ciplinary action as a result of the allegation de14 scribed in subparagraph (B).’’. 

15 SEC. 11. ESTABLISHMENT OF SURVEY PILOT PROGRAM. 

16 (a) IN GENERAL.—The Office of Special Counsel 

17 shall design and establish a pilot program under which 

18 the Office shall conduct, during the first full fiscal year 

19 after the date of enactment of this Act, a survey of individ20 uals who have filed a complaint or disclosure with the Of21 fice. 

22 (b) PURPOSE.—The survey under subsection (a) shall 

23 be designed for the purpose of collecting information and 

24 improving service at various stages of a review or inves25 tigation by the Office of Special Counsel. 


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1 (c) RESULTS.—The results of the survey under sub2 section (a) shall be published in the annual report of the 

3 Office of Special Counsel. 

4 (d) SUSPENSION OF OTHER SURVEYS.—During the 

5 period beginning on October 1, 2017, and ending on Sep6 tember 30, 2018, section 13 of the Act entitled ‘‘An Act 

7 to reauthorize the Office of Special Counsel, and for other 

8 purposes’’, approved October 29, 1994 (5 U.S.C. 1212 

9 note), shall have no force or effect. 

10 SEC. 12. REGULATIONS. 

11 (a) IN GENERAL.—Not later than 2 years after the 

12 date of enactment of this Act, the Special Counsel shall 

13 prescribe such regulations as may be necessary to per14 form— 

15 (1) the functions of the Special Counsel under 

16 subchapter II of chapter 12 of title 5, United States 

17 Code, including regulations that are necessary to 

18 carry out sections 1213, 1214, and 1215 of that 

19 title; and 

20 (2) any functions of the Special Counsel that 

21 are required because of the amendments made by 

22 this Act. 

23 (b) PUBLICATION.—Any regulations prescribed under 

24 subsection (a) shall be published in the Federal Register. 


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1 SEC. 13. AUTHORIZATION OF APPROPRIATIONS. 

2 (a) IN GENERAL.—Section 8(a)(2) of the Whistle3 blower Protection Act of 1989 (5 U.S.C. 5509 note) is 

4 amended by striking ‘‘2003, 2004, 2005, 2006, and 2007’’ 

5 and inserting ‘‘2017 through 2022’’. 

6 (b) EFFECTIVE DATE.—The amendment made by 

7 subsection (a) shall take effect as though enacted on Sep8 tember 30, 2015. 


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Calendar No. 93 

115TH CONGRESS 

1ST SESSION S. 582 

[Report No. 115–74] 

A BILL 

To reauthorize the Office of Special Counsel, and 

for other purposes. 

MAY 18, 2017 

Reported with amendments 


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