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[Senate Report 115-44]
[From the U.S. Government Publishing Office]

						Calendar No. 57

115th Congress ]					[ Report
 1st Session   ]                 SENATE                 [ 115-44
_______________________________________________________________________
       
       DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION ACT OF 2017

                               __________

                              R E P O R T

                                 OF THE

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              TO ACCOMPANY
                              
                                 S. 585

            TO PROVIDE GREATER WHISTLEBLOWER PROTECTIONS FOR
           FEDERAL EMPLOYEES, INCREASED AWARENESS OF FEDERAL
                WHISTLEBLOWER PROTECTIONS, AND INCREASED
           ACCOUNTABILITY AND REQUIRED DISCIPLINE FOR FEDERAL
         SUPERVISORS WHO RETALIATE AGAINST WHISTLEBLOWERS, AND
                           FOR OTHER PURPOSES

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                  May 4, 2017.--Ordered to be printed
                  
                             __________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                             WASHINGTON : 2017
                  
                  
                  
                  
                  
                  
                  
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  JON TESTER, Montana
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
                        Kyle P. Brosnan, Counsel
                       Courtney J. Allen, Counsel
               Margaret E. Daum, Minority Staff Director
               Stacia M. Cardille, Minority Chief Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     

                                                      Calendar No. 57
                                                        
                                                        
115th Congress ]                                          [ Report
                                 SENATE
 1st Session   ]                                          [ 115-44

======================================================================
 
       DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION ACT OF 2017

                                _______
                                

                  May 4, 2017.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 585]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 585) to provide 
greater whistleblower protections for Federal employees, 
increased awareness of Federal whistleblower protections, and 
increased accountability and required discipline for Federal 
supervisors who retaliate against whistleblowers, and for other 
purposes, 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.............................................10
 IV. Section-by-Section Analysis.....................................10
  V. Evaluation of Regulatory Impact.................................12
 VI. Congressional Budget Office Cost Estimate.......................12
VII. Changes in Existing Law Made by the Bill, as Reported...........13

                         I. Purpose and Summary

    S. 585, the Dr. Chris Kirkpatrick Whistleblower Protection 
Act of 2017, provides additional protections to Federal 
employees who are retaliated against for disclosing waste, 
fraud, or abuse in the Federal Government. Additionally, the 
bill directs the Department of Veterans Affairs (VA) to address 
agency-specific gaps in its protection of VA employees, 
including VA employees' privacy interest in their medical 
records and their personal safety.
    The legislation is named in honor of Dr. Chris Kirkpatrick, 
a whistleblower who questioned excessive prescription practices 
at the VA Medical Center in Tomah, Wisconsin (Tomah VAMC). Dr. 
Kirkpatrick took his own life after being fired from the Tomah 
VAMC.\1\
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    \1\On December 9, 2015, the Committee approved S. 2127, the Dr. 
Chris Kirkpatrick Whistleblower Protection Act of 2015. That bill is 
substantially similar to S. 585, and has been modified only slightly. 
Accordingly, this committee report is in large part a reproduction of 
Chairman Johnson's committee report for S. 2127, S. Rep. No. 114-262 
(2016).
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              II. Background and the Need for Legislation

    The Committee has a history of working on a bipartisan 
basis to protect Federal whistleblowers that come forward to 
report waste, fraud, and abuse, who seek the protections of the 
Whistleblower Protection Act. This work has led to legislation 
to address gaps or weaknesses in current law.\2\ In 2012, for 
example, the Committee unanimously reported out, Congress 
passed, and President Obama signed, the Whistleblower 
Protection Enhancement Act of 2012 (WPEA).\3\ The WPEA 
bolstered whistleblower rights by broadening the scope of what 
constitutes a ``disclosure'' of waste, fraud, and abuse by 
civilian government employees to any relevant entity, including 
Congress.\4\
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    \2\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) (statement of 
Thomas M. Devine, Legal Director, Government Accountability Project) 
(``This committee long has played a leadership role in enacting 
legislation to protect whistleblowers.''), available at http://
www.hsgac.senate.gov/hearings/blowing-the-whistle-on-retaliation-
accounts-of-current-and-former-federal-agency-whistleblowers 
[hereinafter ``Blowing the Whistle''].
    \3\Pub. L. No. 112-199 (112th Cong.) (2012).
    \4\Id.
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    Despite the progress Congress and this Committee have made 
in the years since the Whistleblower Protection Act was first 
passed in 1989, whistleblowers too often face retaliation for 
disclosing waste, fraud and abuse. As the legal director for 
the Government Accountability Project put it in testimony 
before the Committee in June 2015: ``retaliation for 
challenging abuses of power always has and always will occur . 
. . . Further, the imperative is permanent to make a negative 
example out of every whistleblower's life, to scare others into 
silence.''\5\
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    \5\Blowing the Whistle at 3 (statement of Thomas M. Devine, Legal 
Director, Government Accountability Project).
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    It is a priority of this Committee to examine the root and 
contributing causes of whistleblower retaliation through 
investigations, hearings, and other oversight, and to identify 
ways in which gaps or weaknesses in current law can be 
addressed through legislation. In the 114th Congress, this 
Committee held multiple hearings where members heard the first-
hand accounts of the hardships whistleblowers across the 
federal government face when they report wrongdoing.\6\ These 
hearings and additional oversight work in the 114th Congress 
helped inform the Committee's legislative efforts. Because of 
this work, the Committee was able to report favorably multiple 
pieces of legislation that provided additional whistleblower 
protections for federal employees,\7\ one of which was signed 
into law.\8\
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    \6\See, e.g., 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); see 
also Improving VA Accountability: Examining First-Hand Accounts of 
Department of Veterans Affairs Whistleblowers: Hearing Before the S. 
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015).
    \7\See, e.g., S. 2127, Dr. Chris Kirkpatrick Whistleblower 
Protection Act of 2015, 114th Cong. (2015); S. 2968, Office of Special 
Counsel Reauthorization Act of 2016, 114th Cong. (2016).
    \8\A bill to enhance whistleblower protection for contractor and 
grantee employees, Pub. L. No. 114-261 (114th Cong.) (2015).
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Increased cases alleging retaliation against whistleblowers

    Retaliation against whistleblowers has been particularly 
concerning in recent years at the VA. The Office of Special 
Counsel (OSC), the Federal agency charged with investigating 
and redressing whistleblower retaliation, ``has seen a sharp 
increase in the number of whistleblower cases from VA 
employees.''\9\ Special Counsel Carolyn Lerner has publicly 
questioned the VA's handling of whistleblower complaints, 
stating that ``it is clear that the workplace culture in many 
VA facilities is hostile to whistleblowers and actively 
discourages them from coming forward with what is often 
critical information.''\10\ VA cases averaged only 20 percent 
of all OSC cases in 2009, 2010, and 2011.\11\ As of September 
2015, the proportion of prohibited personnel practice 
complaints made to OSC by VA employees was approximately 35 
percent of all the complaints received by OSC across the 
Federal Government.\12\ To put this number in context, 2014 was 
the first year on record that cases filed with OSC by VA 
employees surpassed those by Department of Defense (DoD) 
employees, despite the fact that the DoD has two times more 
civilian employees than the VA.\13\ The recent increase of 
whistleblower complaints coming from the VA has forced OSC to 
reallocate staff and resources and prioritize VA cases through 
an expedited review process.\14\
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    \9\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 Lerner, Special Counsel, Office of Special 
Counsel), available at http://www.hsgac.senate.gov/hearings/improving-
va-accountability-examining-first-hand-accounts-of-department-of-
veterans-affairs-whistleblowers [hereinafter ``Improving VA 
Accountability''].
    \10\Id.
    \11\Addressing Continued Whistleblower Retaliation Within VA: 
Hearing Before Comm. on Veterans' Affairs, Subcomm. On Oversight & 
Investigations 1, 114th Cong. (2015) (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel), available at http://
veterans.house.gov/hearing/addressing-continued-whistleblower-
retaliation-within-va [hereinafter ``Addressing Continued Whistleblower 
Retaliation Within VA''].
    \12\Improving VA Accountability at 2 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \13\Id. at 1.
    \14\Id. at 2.
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    The most troubling sign of the VA's treatment of 
whistleblowers comes from the way it has reacted to damaging 
information in some situations--by first questioning the 
individual who made the disclosure rather than investigating 
the allegation the individual raised.\15\ According to Special 
Counsel Lerner, there are two problems with this approach: the 
VA problems are glossed over, and the VA employees fear that 
``their own actions will come under intense scrutiny'' if they 
speak up.\16\
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    \15\Id. at 6-7; Addressing Continued Whistleblower Retaliation 
Within VA 7 (statement of Carolyn Lerner, Special Counsel, Office of 
Special Counsel).
    \16\Id.
---------------------------------------------------------------------------
    In a September 2015 Committee hearing titled Improving VA 
Accountability: Examining First-Hand Accounts of Department of 
Veterans Affairs Whistleblowers, the Committee invited several 
VA whistleblowers to come in and tell their stories to 
``illustrate the wide variety of challenges and hardships 
whistleblowers face when they come forward to report 
wrongdoing.''\17\ The hearing followed a March 2015 Committee 
hearing revealing the tragic events at the Tomah VAMC, where 
two separate whistleblowers--Dr. Noelle Johnson and Ryan Honl--
testified about how they blew the whistle on over-medication at 
the facility, and how their warnings were received by the VA 
with punishment, rather than reform.\18\
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    \17\Improving VA Accountability at 1 (opening statement of Senator 
Ron Johnson).
    \18\Tomah VAMC: Examining Quality, Access, and a Culture of 
Overreliance on High-Risk Medications: Joint Field Hearing Before the 
Comm. of Homeland Security & Governmental Affairs and the H. Comm. on 
Veterans' Affairs, 114th Cong. (2015), available at http://
www.hsgac.senate.gov/hearings/joint-field-hearing-tomah-vamc-examining-
quality-access-and-a-culture-of-overreliance-on-high-risk-medications 
[hereinafter, Tomah VAMC Hearing].
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    One of the individuals who testified at the September 2015 
hearing was Sean Kirkpatrick on behalf of his deceased brother, 
Dr. Chris Kirkpatrick. Dr. Kirkpatrick was a clinical 
psychologist at the Tomah VAMC who came forward to his union 
representative about his concerns that the Tomah VAMC was 
overprescribing medication.\19\ A majority staff report issued 
on May 31, 2016, found that in 2009--and perhaps as far back as 
2004--employees at the Tomah VAMC ``referred to the facility as 
`Candy Land' and to one doctor in particular, Dr. David 
Houlihan, as the `Candy Man.'''\20\ Employees at the facility 
reported that patients used these terms because Dr. Houlihan 
prescribed large quantities of narcotics.\21\ So large, in 
fact, that some Tomah VAMC pharmacists refused to prescribe or 
fill large quantities of narcotic prescriptions for Dr. 
Houlihan's patients.\22\ In the spring of 2009, a Tomah VAMC 
pharmacist and the local union grew concerned about a possible 
connection between Dr. Houlihan's proclivity to give out such 
large quantities of narcotics and the fact that several of his 
patients had ``unexplained'' deaths at this Medical Center.\23\
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    \19\Improving VA Accountability at 1-2 (statement of Sean 
Kirkpatrick).
    \20\Maj. Staff of S. Comm. on Homeland Security and Gov't. Affairs, 
The Systemic Failures and Preventable Tragedies at the Tomah VA Medical 
Center, vi, 114th Cong. (2016) [hereinafter ``Tomah Report''].
    \21\Id. at i.
    \22\Id. at 116.
    \23\See id. at 29; see also id. at 22-24.
---------------------------------------------------------------------------
    According to documents obtained by the Committee, around 
the same time of rising concerns with Dr. Houlihan's 
prescribing methods, Dr. Kirkpatrick reported to his 
supervisors and his union representative that he believed some 
of his patients were overmedicated.\24\ At the Committee's 
hearing on September 22, 2015, Dr. Kirkpatrick's brother 
provided further information. He testified that Dr. Kirkpatrick 
also complained that he was ``very afraid of Dr. Houlihan'' and 
was facing an ``ethical dilemma'' because he had discussed with 
a physician assistant the fact that he had concerns about 
medication being prescribed, and that the physician assistant 
had accused him of inappropriate behavior.\25\ Sean Kirkpatrick 
testified that shortly thereafter, Dr. Kirkpatrick received a 
written counseling admonishing him for ```educating' patients 
about what medications they are on'' and advising him to 
``focus on his own work.''\26\ On July 14, 2009, the Tomah VAMC 
terminated Dr. Kirkpatrick for ``performance issues.''\27\ 
Tragically, Dr. Kirkpatrick took his own life later that 
evening.\28\ The VA never investigated Dr. Kirkpatrick's 
suicide.\29\
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    \24\E-mail from Chris Kirkpatrick, Tomah VAMC, to Dianne Streeter 
and Linda Ellinghuysen (Apr. 23, 2009), in Juneau Co. Sherriff's Dept., 
Chris Kirkpatrick Death Investigation Report 40, 43 (2009) (on file 
with Comm.) [hereinafter ``Chris Kirkpatrick Death Investigation 
Report''].
    \25\Improving VA Accountability at 2 (statement of Sean 
Kirkpatrick).
    \26\Id.
    \27\Letter from Wayne Davis, Manager, Great Lakes Human Resources 
Management Service, to Chris Kirkpatrick (July 14, 2009) (on file with 
Comm.).
    \28\Chris Kirkpatrick Death Investigation Report.
    \29\Letter from Sloan Gibson, Deputy Sec'y, U.S. Dep't of Veterans 
Affairs, to Sen. Ron Johnson, Chairman, S. Comm. on Homeland Sec. & 
Governmental Affairs (May 29, 2015) (on file with Comm.).
---------------------------------------------------------------------------
    In his testimony before the Committee, Sean Kirkpatrick 
detailed the retaliation he believes his brother experienced in 
the wake of his questioning veteran care at the Tomah VAMC. 
Sean Kirkpatrick also explained the emotional stress that Dr. 
Kirkpatrick had been under at the facility due to ``taking on 
so many cases'' without additional help, receiving threats of 
violence from one of his patients, and feeling as if he had no 
outlet to discuss the emotional stresses of treating veterans 
with Post Traumatic Stress Disorder.\30\ Sean Kirkpatrick 
suggested nine recommendations for Congress to consider to 
reform the way that whistleblowers, and in particular, VA 
employees, are treated.\31\ Many of those recommendations are 
addressed in this legislation and discussed in further detail 
below.
---------------------------------------------------------------------------
    \30\Improving VA Accountability at 3 (statement of Sean 
Kirkpatrick)
    \31\Id. at 6-7.
---------------------------------------------------------------------------
    While retaliation at the VA has captured the public's 
attention most recently, retaliation against whistleblowers is 
not confined to any one agency. To better understand these 
issues across the Federal Government, the Committee held a 
hearing in June 2015, titled Blowing the Whistle on 
Retaliation: Accounts of Current and Former Federal Agency 
Whistleblowers.\32\ Witnesses at the hearing were employees 
from the United States Army, Homeland Security Investigations, 
the Social Security Administration, and the United States 
Customs and Border Protection who testified that they made a 
disclosure and believed they experienced retaliation from the 
agencies in response, including loss of their job, suspension 
of pay, and termination proceedings against them.\33\
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    \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), available at 
http://www.hsgac.senate.gov/hearings/blowing-the-whistle-on-
retaliation-accounts-of-current-and-former-federal-agency-
whistleblowers [hereinafter ``Blowing the Whistle on Retaliation''].
    \33\Id.
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Probationary period employees

    Some Federal employees serving initial appointments or 
being promoted to management in the civil service are required 
to serve a period of probation, or temporary appointment, 
typically for one year.\34\ This time period allows the agency 
to evaluate the employee before the appointment becomes 
final.\35\ If the agency decides not to finalize the 
appointment, the individual has limited appeal rights and the 
agency does not have to go through the same formal procedures 
to terminate the employee as it would if the employee's 
appointment was finalized, after which dismissing an employee 
becomes ``more difficult and time consuming.''\36\
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    \34\5 U.S.C. Sec. 3321(a). See also 5 C.F.R. Sec. 315.801-04. Gov't 
Accountability Office, GAO-15-191, Federal Workforce: Improved 
Supervision and Better Use of Probationary Periods Are Needed to 
Address Substandard Employee Performance 10 (2015).
    \35\Id.
    \36\Gov't Accountability Office, GAO-15-191, Federal Workforce: 
Improved Supervision and Better Use of Probationary Periods Are Needed 
to Address Substandard Employee Performance 11 (2015). See also 5 
C.F.R. Sec. 315.806.
---------------------------------------------------------------------------
    While probationary periods serve a very important function 
in the civil service, they have the potential to be used as a 
tool by managers to retaliate against whistleblowers, since 
during this time an employee may feel less free to speak up 
about abuses. Accordingly, the Committee believes it is useful 
to have an independent review of claims of retaliation against 
employees serving in a probationary status to ensure such abuse 
is not occurring.
    Probationary period employees should feel safe to make a 
protected disclosure to their agency, agency Inspector General, 
or OSC, despite the fact that they are just starting out in 
Federal service. One way to encourage employees to speak up is 
to ensure that, if they are retaliated against for a 
disclosure, they have the right to request a transfer to 
another position while their investigation is underway and the 
agency should prioritize that request. Getting an employee out 
of their immediate management structure while their demotion, 
termination, or other personnel action is stayed can give the 
employee the time and peace of mind to fight the action.

Lack of accountability

    ``Every academic or government study has concluded that the 
primary motivating, or chilling factor for would-be 
whistleblowers is whether they can make a difference by bearing 
witness.''\37\ Unfortunately, in 2016 only sixty-two percent of 
Federal employees that responded to an Office of Personnel 
Management survey seeking Federal employee viewpoints on a 
variety of topics reported that they believed they could blow 
the whistle on a potential violation of any law, rule, or 
regulation without facing reprisal.\38\
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    \37\Blowing the Whistle on Retaliation (statement of Thomas M. 
Devine, Legal Director, Government Accountability Project).
    \38\Office of Personnel Mgmt., Federal Employee Viewpoint Survey 
Results, Governmentwide Management Report 38 (2016) available at 
https://www.fedview.opm.gov/2016FILES/2016_FEVS_Gwide_Final_Report.PDF.
---------------------------------------------------------------------------
    OSC has also raised concerns about the inconsistent use of 
discipline against those whose wrongdoing is exposed by 
whistleblowers at the VA. In testimony before this Committee, 
Special Counsel Lerner noted numerous examples of the VA 
failing to discipline officials found responsible for posing 
significant risks to public health and safety or engaging in 
other misconduct.\39\ Special Counsel Lerner added that this 
lack of discipline ``stand[s] in stark contrast to disciplinary 
actions taken against VA whistleblowers . . . for minor 
indiscretions or for activity directly related to the 
employee's whistleblowing.''\40\
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    \39\Improving VA Accountability 5-6 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \40\Id. at 6.
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    The Veterans Access, Choice and Accountability Act of 
2014,\41\ as amended by the Department of Veterans Affairs 
Expiring Authorities Act of 2014,\42\ commissioned an 
``independent assessment of 12 areas of VA's health care 
delivery systems and management processes.''\43\ The study 
found, in part, that the Veterans Health Administration (VHA) 
has been ``plagued by many problems: growing bureaucracy, 
leadership and staffing challenges, and unsustainable 
trajectory of capital costs.''\44\ In addition, the study found 
``a misalignment of accountability and authority exists within 
a broader VHA culture characterized by risk aversion and lack 
of trust.''\45\ To ensure accountability throughout the Federal 
Government, S. 585 outlines mandatory disciplinary procedures 
for managers that are found to have retaliated against 
whistleblowers.
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    \41\Pub. L. No. 113-146 (113th Cong.).
    \42\Pub. L. No. 113-175 (113th Cong.).
    \43\Independent Assessment of the Health Care Delivery Systems and 
Management Processes of the Department of Veterans Affairs, Volume I: 
Integrated Report iii (2015), available at http://www.va.gov/opa/
choiceact/documents/assessments/Integrated_Report.pdf.
    \44\Id. at xii.
    \45\Id. at xvi.
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    This ``misalignment'' was all the more visible in the 
aftermath of the VA manipulated-wait-time scandal. Following 
the wait-time scandal, Congress passed the Veterans Access, 
Choice and Accountability Act of 2014 (Choice Act).\46\ The 
Choice Act authorized the Secretary of the VA to seek the 
removal or transfer of Senior Executives based on poor 
performance or misconduct. To date, the VA has used its 
authority to remove only six senior executives.\47\ On May 31, 
2016, Attorney General Lynch informed the Senate Legal Counsel 
that the Justice Department would no longer enforce the removal 
provisions of the Choice Act, arguing that they are 
``inconsistent with the Appointments Clause'' of the 
Constitution.\48\ In addition, previous VA leadership 
vigorously opposed congressional efforts to enact additional 
accountability measures on non-senior executive VA 
employees.\49\
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    \46\Veterans Access, Choice, and Accountability Act of 2014, Pub. 
L. No. 113-146, 128 Stat. 1754 (2014).
    \47\Tomah VAMC: Examining Patient Care and Abuse of Authority: 
Hearing Before the S. Comm. on Homeland Sec. and Gov't Affairs, 114th 
Cong. (2016) (statements of Hon. Sloan Gibson, Deputy Sec'y, Veterans 
Health Admin., Dep't of Veterans Affairs, post-hearing questions for 
the record), on file with Comm.
    \48\Letter from Loretta Lynch, Attorney General, U.S. Dep't of 
Justice, to Patricia Bryan, Senate Legal Counsel, U.S. Senate (May 31, 
2016), available at http://1yxsm73j7aop3quc9y5ifaw3.wpengine.netdna-
cdn.com/wp-content/uploads/2016/06/helman_v_VA.pdf; see also Nicole 
Ogrysko, DoJ Says Key VA Choice Provisions for SES Appeals is 
Unconstitutional, Federal News Radio (June 3, 2016, 10:25 AM), http://
federalnewsradio.com/workforce-rightsgovernance/2016/06/doj-says-key-
va-choice-provision-ses-appeals-unconstitutional/
    \49\Pending Health Care and Benefits Legislation Before S. Comm. on 
Veterans' Affairs, 114th Cong. (2015) (statements of Dr. Rajiv Jain, 
Assistant Deputy Under Sec'y for Health for Patient Care Sers., 
Veterans Health Admin.), available at http://www.veterans.senate.gov/
imo/media/doc/VHA%20Jain%20Testimony%206.24.15.pdf.
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    In addition to ensuring consistent discipline, it is 
crucial that employees know their rights and that supervisors 
and managers have training on how to address protected 
disclosures and allegations of retaliation. Current law 
requires that agencies keep their workforce informed about the 
rights and remedies available to them to prevent prohibited 
personnel practices, including how to make a disclosure.\50\ To 
help agencies meet this obligation, OSC provides a 
certification program that walks the agency through simple 
steps such as placing informational posters at agency 
facilities, providing information to new hires, and training 
supervisors about prohibited personnel practices.\51\ The 
certification program is not statutorily required, but is 
mandated under the Administration's National Action Plan on 
Open Government.\52\
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    \50\5 U.S.C. Sec. 2302(c).
    \51\Examining the Administration's Treatment of Whistleblowers: 
Hearing Before the Oversight & Gov. Reform Comm. 7, 113th Cong. (2014) 
(statement of Carolyn Lerner, Special Counsel, Office of Special 
Counsel), available at https://oversight.house.gov/hearing/examining-
administrations-treatment-whistleblowers/.
    \52\Id.
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    To ensure all agencies are providing this crucial 
information to their employees, S. 585 sets a deadline for 
agencies to provide their employees with the required 
information, and also provides more detail on what type of 
information the agency needs to include when it informs its 
employees of their general whistleblower rights: (1) 
information regarding whistleblower protections available to 
new employees during the probationary period; (2) information 
about the role of OSC and the MSPB in protecting 
whistleblowers; and (3) information about how to make a lawful 
disclosure that must be kept classified in the interest of 
national security. Additionally, S. 585 requires that 
information about employee's whistleblower protections must be 
made publicly available through the agency's own website, and 
on the agency's internal online portal, if one exists.

Other improvements needed at the VA

    The original Whistleblower Protection Act contained twelve 
prohibited personnel practices listed in statute that serve to 
protect Federal employees, including protection from hiring 
violations, discrimination, and retaliation against 
whistleblowers.\53\ In the years since the law was passed, 
however, changes in agency action have required Congress to 
further protect employees by supplementing the list. Through 
the WPEA, Congress added a thirteenth prohibited personnel 
practice: prohibiting agencies from imposing non-disclosure 
agreements on Federal employees that do not explicitly permit 
whistleblowing.\54\
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    \53\Pub. L. No. 101-12 (101st Cong.) (1989).
    \54\Pub. L. No. 112-199 (112th Cong.) (2012).
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    Similarly, some agency employees are now skirting the law 
and retaliating against whistleblowers in other ``creative'' 
ways.\55\ One significant concern to this Committee is the 
abuse of accessing a whistleblower's medical records. In 2015, 
Special Counsel Lerner testified that ``[i]n several cases, the 
medical records of whistleblowers have been accessed and 
information in those records has apparently been used to 
attempt to discredit the whistleblowers.''\56\ At the 
Committee's March 2015 field hearing in Tomah, Wisconsin, 
whistleblower and Army veteran Ryan Honl testified that Tomah 
VAMC employees accessed his medical records despite the fact 
that Mr. Honl had never received care at the Tomah VAMC.\57\ In 
addition, Brandon Coleman and Shea Wilkes, both veteran VA 
employees, testified at the Committee's September 2015 hearing 
that their medical records were improperly accessed by VA 
officials after they began raising concerns about patient care 
at the VA facilities where they worked.\58\ Mr. Wilkes 
testified that he has talked with more than 50 whistleblowers 
across the country who have had their medical records 
accessed.\59\
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    \55\Blowing the Whistle on Retaliation (statement of Thomas M. 
Devine, Legal Director, Government Accountability Office).
    \56\Improving VA Accountability at 7 (statement of Carolyn Lerner, 
Special Counsel, Office of Special Counsel).
    \57\Tomah VAMC Hearing at 2 (statement of Ryan Honl).
    \58\See generally, Improving VA Accountability (statements of 
Brandon Coleman, Ph.D. and Shea Wilkes).
    \59\Id. (testimony of Shea Wilkes, Licensed Clinical Social Worker, 
Overton VA Medical Center).
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    The VA may lack proper technological safeguards to ensure 
that employees' medical records are shielded from the view of 
other employees. According to OSC, non-medical personnel within 
the VA have at times accessed the medical files of their 
veteran coworkers.\60\ In discussions with OSC staff, OSC has 
reported that in some instances, VA employees have claimed that 
they accessed another employee's medical record simply to 
obtain their address for a valid work-related reason.\61\ There 
does not seem to be a valid reason for a VA employee to access 
to the medical records of another employee unless they are 
treating the individual. It is the Committee's view that in all 
other circumstances, if the VA employee is in need of personal 
information, such as an address, he or she should obtain that 
information through the agency's personnel records system.
---------------------------------------------------------------------------
    \60\Comm. staff discussions with the Office of Special Counsel 
(Nov. 2015).
    \61\Id.
---------------------------------------------------------------------------
    In addition to improper access of medical records, the 
Committee has heard testimony of other employee concerns at the 
VA, including employee mental health and safety. As stated 
above, Dr. Chris Kirkpatrick was a clinical psychologist at the 
Tomah VAMC. Dr. Kirkpatrick's brother provided to the Committee 
information about Dr. Kirkpatrick's work at Tomah VAMC. 
According to Dr. Kirkpatrick's brother, Sean, in his job, Dr. 
Kirkpatrick treated veterans dealing with complex, sometimes 
combat-related mental illness including post-traumatic stress 
disorder (PTSD) and acute stress disorder (ASD).\62\ These 
veterans would recount their horrific experiences on the 
battlefield to Dr. Kirkpatrick and he would devise treatment 
methods to assist those veterans in their recovery.\63\ Sean 
Kirkpatrick testified that Dr. Kirkpatrick sometimes felt 
overwhelmed by his caseload and the stories he heard and 
believed that there should be some sort of support structure in 
place for VA professionals to seek mental health services of 
their own.\64\ This bill would require the VA to conduct 
outreach to its employees to make them more aware of any 
available mental health services, including telemedicine 
options.
---------------------------------------------------------------------------
    \62\Improving VA Accountability (statement of Sean Kirkpatrick).
    \63\Id.
    \64\Id.
---------------------------------------------------------------------------
    Sean Kirkpatrick also testified that a veteran had 
threatened Dr. Kirkpatrick at the Tomah VAMC. According to Sean 
Kirkpatrick's testimony, Dr. Kirkpatrick reached out to his 
union stating that he was concerned for his safety after this 
veteran threatened to commit bodily harm to Dr. Kirkpatrick and 
his dog.\65\ In an April 20, 2015 letter, Chairman Johnson 
inquired about VA protocols for handling threats from patients 
to staff and what actions, if any, were taken regarding any 
patient that may have threatened Dr. Kirkpatrick.\66\ In 
response, the VA stated to Chairman Johnson that the VA Police 
Service addresses patient threats and that the Tomah VAMC has a 
``Flags Committee to consider risk factors and recommendations 
on flagging patients consistent with VHA Directive 2010-053, 
Patient Record Flags.''\67\ Specifically regarding the alleged 
threat against Dr. Kirkpatrick, the VA stated that Tomah VAMC 
was ``not aware of an investigation into threats being made 
against Dr. Kirkpatrick by a patient. A review of Dr. 
Kirkpatrick's records identified one Veteran as possibly being 
the Veteran who may have threatened Dr. Kirkpatrick. However 
the Tomah VAMC is not aware of any action taken against this 
patient regarding threats against Dr. Kirkpatrick.''\68\ This 
bill would require the VA to ensure protocols are in place to 
address threats from VA patients against VA employees.
---------------------------------------------------------------------------
    \65\Id.
    \66\Letter from Ron Johnson, Chairman S. Comm. on Homeland Security 
and Governmental Affairs, to Robert McDonald, Secretary, Dep't. of 
Veterans Affairs, Apr. 20, 2015.
    \67\Letter from Sloan D. Gibson, Deputy Secretary, Dep't of 
Veterans Affairs, to Ron Johnson, Chairman, S. Comm. on Homeland 
Security and Governmental Affairs, May 29, 2015.
    \68\Id.
---------------------------------------------------------------------------
    The Committee's investigation of the Tomah VAMC has 
discovered other areas for improvement within the VA. In 
particular, the investigation has identified potential problems 
with the reporting structure of the VA Police Department of the 
Tomah VAMC. Sean Kirkpatrick testified that the reporting 
structure of the Tomah VA Police Department may haveled to 
potential conflicts of interest with hospital leadership and possibly 
inhibited the Tomah VA Police Department's law enforcement functions at 
the facility.\69\ There is potential that the chain of command 
structure for police departments at other VA facilities poses similar 
concerns about conflicts of interest with facility management. 
Accordingly, S. 585 would require that GAO study the reporting, 
staffing, accountability, and chain of command structure of the VA 
police officers at their own medical centers.
---------------------------------------------------------------------------
    \69\Improving VA Accountability (statement of Sean Kirkpatrick).
---------------------------------------------------------------------------
    S. 585 is a culmination of the work this Committee has done 
to examine the gaps and weaknesses in current whistleblower 
protection laws.\70\ The bill addresses a wide array of the 
most pressing problems at the VA and across the Federal 
Government relating to retaliation against whistleblowers, and 
directs the VA to put in place plans to limit its employees' 
unauthorized access to medical records.
---------------------------------------------------------------------------
    \70\The version of this bill that the Committee reported favorably 
in the 114th Congress (S. 2127, 114th Cong.) contained a provision that 
gave the OSC statutory authority for access to documents from Executive 
Branch agencies. This bill does not include that provision because the 
Committee believes that the Office of Special Counsel Reauthorization 
Act of 2017 is the best legislative vehicle to address that issue. See 
Office of Special Counsel Reauthorization Act of 2017, S. 582, 115th 
Cong. (2017).
---------------------------------------------------------------------------

                        III. Legislative History

    Chairman Ron Johnson (R-WI) introduced S. 585, the Dr. 
Chris Kirkpatrick Whistleblower Protection Act of 2017, on 
March 8, 2017, with Senator Joni Ernst (R-IA). The bill was 
referred to the Committee on Homeland Security and Governmental 
Affairs.
    The Committee considered S. 585 at a business meeting on 
March 15, 2017. No amendments were offered. The bill was passed 
by voice vote en bloc with Senators Johnson, Portman, Lankford, 
Daines, McCaskill, Carper, Tester, Heitkamp, Peters, Hassan, 
and Harris present.

        IV. Section-by-Section Analysis of the Bill, as Reported

Sec. 1. Short title; table of contents

    This section establishes the short title of the bill as the 
``Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017.''

Title I: Employees Generally

Sec. 101. Definitions

    This section includes definitions of the term ``agency'' 
``employee'', and ``personnel action''.

Sec. 102. Stays; probationary employees

    Subsections (a) and (b) ensure that if MSPB grants a stay 
to an employee under Title 5, Section 1214 or 1221, the 
employee can request from their employing agency a transfer, 
and that request shall receive priority. Subsection (c) 
requires GAO to study federal agency retaliation against 
probationary period employees.

Sec. 103. Prohibited personnel practices

    This section makes accessing an employees's medical record 
in retaliation of an employee engaging in a protected activity 
a prohibited personnel practice.

Sec. 104. Discipline of supervisors based on retaliation against 
        whistleblowers

    This section requires the head of each agency to propose 
prescribed adverse actions against supervisory employees who 
are determined to have committed a prohibited personnel action 
against a whistleblower or accessed a medical record in 
retaliation for the employee engaging in a protected activity 
as described in title 5, Section 2302(b)(8), (9), and the new 
(14). The adverse actions that shall be proposed are: for the 
first offense, not less than a 3-day suspension plus any 
additional supplemental discipline the head of the agency (or 
his designee) deems appropriate; and for a second offense, 
removal. A determination of the commitment of a prohibited 
personnel action must be made by the head of the agency, an 
administrative judge, the MSPB, the OSC, an adjudicating body 
provided under a union contract, a Federal judge, or the agency 
Inspector General. Employees against whom these adverse actions 
are proposed would have notice and opportunity to respond and 
retain due process rights to appeal the decision to the Merit 
System Protections Board.

Sec. 105. Suicide by employees

    Subsections (a) and (b) ensure that OSC has the information 
it needs to investigate prohibited personnel practices if an 
employee commits suicide. OSC would know if someone filed a 
complaint with OSC, but not necessarily if they made 
disclosures to the agency. These provisions require the agency 
to share information with the OSC about a Federal employee who 
committed suicide if that employee had, prior to his or her 
death, (1) made any protected disclosure, and (2) had a 
personnel action taken against him or her by the agency. In 
such circumstances, OSC is required to examine whether the 
personnel action was taken because of the disclosure and take 
appropriate action.

Sec. 106. Training for supervisors

    This section requires agencies to provide supervisors 
training on responding to complaints alleging a violation of 
whistleblower protections available to agency employees.

Sec. 107. Information on whistleblower protections

    This section requires agencies to keep their employees 
apprised of the rights and remedies available to them if the 
agency commits a prohibited personnel practice, including 
requiring agencies to post such information on their public and 
internal websites.

Title II: Department of Veterans Affairs Employees

Sec. 201. Prevention of unauthorized access to medical records of 
        employees of the Department of Veterans Affairs

    This section requires the VA to formulate a plan for 
protecting employees from having their medical records accessed 
without authorization. The plan must include how the agency 
will use technology to block computer access to records for 
those employees who have no need to access such information. 
This section will also require Department employees to cease 
accessing medical files for demographic information where 
another non-medical database is available, which OSC believes 
has been an unnecessary invasion of privacy and could be a 
pretext for accessing unauthorized files.

Sec. 202. Outreach on availability of mental health services available 
        to employees of the Department of Veterans Affairs

    This section requires the VA to conduct outreach to its 
employees to make them more aware of any mental health 
services, including telemedicine, that are available to them.

Sec. 203. Protocols to address threats against employees of the 
        Department of Veterans Affairs

    This section requires the VA to ensure protocols are in 
place to address threats from VA patients against VA employees.

Sec. 204. Comptroller General of the United States study on 
        accountability of chiefs of police of Department of Veterans 
        Affairs medical centers

    This section requires GAO to study the reporting, staffing, 
accountability, and chain of command structure of the VA police 
officers at their own medical centers.

                  III. 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.

             IV. Congressional Budget Office Cost Estimate

                                                       May 1, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, 
        United States Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 585, the Dr. Chris 
Kirkpatrick Whistleblower Protection Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 585--Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

    S. 585 would require the Government Accountability Office 
(GAO) to prepare two reports and would modify several personnel 
and administrative procedures at federal agencies--some of 
which would be specific to the Department of Veterans Affairs 
(VA). CBO estimates that implementing S. 585 would cost $3 
million over the 2018-2022 period; that spending would be 
subject to the availability of appropriated funds. Enacting S. 
585 would not affect direct spending or revenues; therefore, 
pay-as-you-go procedures do not apply.
    The two reports by GAO would discuss retaliation against 
employees on probationary status and assess management and 
staffing levels of police officers at VA medical centers. On 
the basis of costs for similar reports, CBO estimates that 
completing those reports would cost $2 million over the 2018-
2022 period.
    Additionally, on the basis of information from VA and the 
Office of Special Counsel, CBO expects that individually, 
provisions modifying procedures at VA and other federal 
agencies would have an insignificant budgetary effect because 
they would either largely codify current practice or affect few 
people. In total, however, CBO estimates that implementing 
those provisions would, in total, cost $1 million over the 
2018-2022 period.
    CBO estimates that enacting S. 585 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 585 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

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

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

           *       *       *       *       *       *       *

                  (E) If the Merit Systems Protections Board 
                grants a stay under this subsection, the head 
                of the agency employing the employee shall give 
                priority to a request for a transfer submitted 
                by the employee.

           *       *       *       *       *       *       *

Subchapter III--Individual Right of Action in Certain Reprisal Cases

           *       *       *       *       *       *       *

SEC. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES

    (a) * * *

           *       *       *       *       *       *       *

    (k) If the Merit Systems Protection Board grants a stay to 
an employee in probationary status under subsection (c), the 
head of the agency employing the employee shall give priority 
to a request for a transfer submitted by the employee.

           *       *       *       *       *       *       *

PART III--EMPLOYEES

           *       *       *       *       *       *       *

Subpart A--General Provisions

           *       *       *       *       *       *       *

CHAPTER 23--MERIT SYSTEM PRINCIPLES

           *       *       *       *       *       *       *

Table of sections

Sec.
2301. Merit systems principles.
2302. Prohibited personnel practices.
2303. Prohibited personnel practices in the Federal Bureau of 
          Investigation.
2304. Prohibited personnel practices affecting the Transportation 
          Security Administration.
2305. Responsibilities of the Government Accountability Office.
2306. Coordination with certain other provisions of law.
2307. Information on whistleblower protections.

           *       *       *       *       *       *       *

SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

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

           *       *       *       *       *       *       *

          (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.''[.] ; or
          (14) access the medical record of another employee or 
        an applicant for employment as a part of, or otherwise 
        in furtherance of, any conduct described in paragraphs 
        (1) through (13).
    [(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)] (c) 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)] (d)
          (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)] (e)
          (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.

           *       *       *       *       *       *       *

SEC. 2307. INFORMATION ON WHISTLEBLOWER PROTECTIONS.

    (a) Definitions.--In this section--
          (1) the term `agency'--
                  (A) except as provided in subparagraph (B), 
                has the meaning given that term in section 
                2302;
                  (B) does not include any entity that is an 
                element of the intelligence community, as 
                defined in section 3(4) of the National 
                Security Act of 1947 (50 U.S.C. 3003(4));
          (2) the term `new employee' means an individual--
                  (A) appointed to a position as an employee of 
                an agency on or after the date of enactment of 
                the Dr. Chris Kirkpatrick Whistleblower 
                Protection Act of 2017; and
                  (B) who has not previously served as an 
                employee; and
          (3) the term ``whistleblower protections'' means the 
        protections against and remedies for a prohibited 
        personnel practice described in paragraph (8), 
        subparagraph (A)(i), (B), (C), or (D) of paragraph (9), 
        or paragraph (14) of section 2302(b).
    (b) Responsibilities of Head of Agency.--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 Special Counsel and the Inspector General 
of the agency) that employees of the agency are informed of the 
rights and remedies available to them under this chapter and 
chapter 12, including--
          (1) information regarding whistleblower protections 
        available to new employees during the probationary 
        period;
          (2) the role of the Office of Special Counsel and the 
        Merit Systems Protection Board with regard to 
        whistleblower protections; and
          (3) 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.
    (c) Timing.--The head of each agency shall ensure that the 
information required to be provided under subsection (b) is 
provided to each new employee of the agency not later than 6 
months after the date the new employee begins performing as an 
employee.
    (d) Information Online.--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 one exists.
    (e) Delegees.--Any employee to whom the head of an agency 
delegates authority for personnel management, or for any aspect 
thereof, shall, within the limits of the scope of the 
delegation, be responsible for the activities described in 
subsection (b).

           *       *       *       *       *       *       *

Subpart C--Employee Performance

           *       *       *       *       *       *       *

CHAPTER 45--INCENTIVE AWARDS

           *       *       *       *       *       *       *

Subchapter I--Awards for Superior Accomplishments

           *       *       *       *       *       *       *

SEC. 4505A. PERFORMANCE-BASED CASH AWARDS.

    (a) * * *
    (b)
          (1) * * *
          (2) The failure to pay a cash award under this 
        section, or the amount of such an award, may not be 
        appealed. The preceding sentence shall not be construed 
        to extinguish or lessen any right or remedy under 
        subchapter II of chapter 12, chapter 71, or any of the 
        laws referred to in section [2302(d)] section 2302(c).

           *       *       *       *       *       *       *

Subpart D--Pay and Allowances

           *       *       *       *       *       *       *

CHAPTER 57--TRAVEL, TRANSPORTATION, AND SUBSISTENCE

           *       *       *       *       *       *       *

Subchapter IV--Miscellaneous Provisions

           *       *       *       *       *       *       *

SEC. 5755. SUPERVISORY DIFFERENTIALS.

    (a) * * *
    (b)
          (1) * * *
          (2) A supervisory differential may not be considered 
        to be part of the basic pay of an employee, and the 
        reduction or elimination of a supervisory differential 
        may not be appealed. The preceding sentence shall not 
        be construed to extinguish or lessen any right or 
        remedy under subchapter II of chapter 12 or under any 
        of the laws referred to in section [2302(d)] section 
        2302(c).

           *       *       *       *       *       *       *

Subpart F--Labor-Management and Employee Relations

           *       *       *       *       *       *       *

CHAPTER 75--ADVERSE ACTIONS

           *       *       *       *       *       *       *

Subchapter II--Removal, Suspension for More Than 14 Days, Reduction in 
Grade or Pay, or Furlough for 30 Days or Less

           *       *       *       *       *       *       *

Table of sections

Sec.
7511. Definitions; application.
7512. Actions covered.
7513. Cause and procedure.
7514. Regulations.
7515. Discipline of supervisors based on retaliation against 
          whistleblowers.
     * * * * * * *

SEC. 7515. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION AGAINST 
                    WHISTLEBLOWERS.

    (a) Definitions.--In this section--
          (1) the term `agency'--
                  (A) except as provided in subparagraph (B), 
                means an entity that is an agency, as defined 
                under section 2302, without regard to whether 
                any other provision of this chapter is 
                applicable to the entity; and
                  (B) does not include any entity that is an 
                element of the intelligence community, as 
                defined in section 3(4) of the National 
                Security Act of 1947 (50 U.S.C. 3003(4));
          (2) the term `prohibited personnel action' means 
        taking or failing to take an action in violation of 
        paragraph (8), (9), or (14) of section 2302(b) against 
        an employee of an agency; and (3) the term `supervisor' 
        means an employee who would be a supervisor, as defined 
        under section 7103(a), if the entity employing the 
        employee was an agency.
    (b) Proposed Disciplinary Actions.--
          (1) In general.--If the head of the agency employing 
        a supervisor, an administrative law judge, the Merit 
        Systems Protection Board, the Special Counsel, a judge 
        of the United States, or the Inspector General of the 
        agency employing a supervisor determines that the 
        supervisor committed a prohibited personnel action, the 
        head of the agency employing the supervisor, in 
        accordance with the procedures under paragraph (2)--
                  (A) for the first prohibited personnel action 
                committed by a supervisor--
                          (i) shall propose suspending the 
                        supervisor for a period of not less 
                        than 3 days; and
                          (ii) may, in addition to a suspension 
                        described in clause (i), propose any 
                        other action, including reduction in 
                        grade or pay, that the head of the 
                        agency determines appropriate; and
                  (B) for the second prohibited personnel 
                action committed by a supervisor, shall propose 
                removing the supervisor.
          (2) Procedures.--
                  (A) Notice.--A supervisor against whom an 
                adverse action u is proposed is entitled to 
                written notice
                          (i) stating the specific reasons for 
                        the proposed action; and
                          (ii) informing the supervisor of the 
                        right of the supervisor to review the 
                        material which is relied on to support 
                        the reasons for the proposed action.
                  (B) Answer and evidence.--
                          (i) In general.--A supervisor who is 
                        notified under subparagraph (A) that 
                        the supervisor is the subject of a 
                        proposed adverse action under paragraph 
                        (1) is entitled to 14 days following 
                        such notification to answer and furnish 
                        evidence in support of the answer.
                          (ii) No evidence furnished; 
                        insufficient evidence.--After the end 
                        of the 14-day period described in 
                        clause (i), if a supervisor does not 
                        furnish evidence as described in clause 
                        (i) or if the head of the agency 
                        determines that such evidence is not 
                        sufficient to reverse the proposed 
                        adverse action, the head of the agency 
                        shall carry out the adverse action.
                  (C) Scope of procedures.--An action carried 
                out under this section--
                          (i) except as provided in clause 
                        (ii), shall be subject to the same 
                        requirements and procedures (including 
                        regarding appeals) as an action under 
                        section 7503, 7513, or 7543; and--
                          (ii) shall not be subject to--
                                  (I) paragraphs (1) and (2) of 
                                subsection section 7503(b);
                                  (II) paragraphs (1) and (2) 
                                of subsection b and subsection 
                                (c) of section 7513; or
                                  (III) paragraphs (1) and (2) 
                                of subsection (b) and 
                                subsection (c) of section 7543.
          (3) Delegation.--
                  (A) In general.--Except as provided in 
                paragraph (B), the head of an agency may 
                delegate any authority or responsibility under 
                this subsection.
                  (B) Nondelegability of Determination 
                Regarding Prohibited Personnel Action.--If the 
                head of an agency is responsible for 
                determining whether a supervisor has committed 
                a prohibited personnel action for purpose of 
                paragraph (1), the head of the agency may not 
                delegate that responsibility

           *       *       *       *       *       *       *

WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2012

           *       *       *       *       *       *       *

SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, ANALYSIS, OR 
                    TECHNICAL INFORMATION.

    (a) * * *
    (b) Protected Disclosure.--
          (1) * * *
          (2) Disclosures not excluded.--A disclosure shall not 
        be excluded from paragraph (1) for any reason described 
        under [section 2302(f)(1) or (2)] section 2303(e)(1) or 
        (2) of title 5, United States Code.

           *       *       *       *       *       *       *

HOMELAND SECURITY ACT OF 2002

           *       *       *       *       *       *       *

SEC. 704. CHIEF HUMAN CAPITAL OFFICER.

    The Chief Human Capital Officer shall report to the 
Secretary, or to another official of the Department, as the 
Secretary may direct and shall ensure that all employees of the 
Department are informed of their rights and remedies under 
chapters 12 and 23 of title 5 by
          (1) participating in the [2302(c)] 2307 Certification 
        Program of the Office of Special Counsel;
          (2) achieving certification from the Office of 
        Special Counsel of the Department's compliance with 
        section [2302(c)] 2307 of title 5; and
          (3) informing Congress of such certification not 
        later than 24 months after November 25, 2002.

           *       *       *       *       *       *       *

PANAMA CANAL ACT OF 1979

           *       *       *       *       *       *       *

SEC. 1217. RECRUITMENT AND RETENTION REMUNERATION.

    (a) * * *
    (b) * * *
    (c) * * *
    (d) * * *
          (1) * * *
          (2) * * *
          (3) A decision by the Commission to exercise or to 
        not exercise the authority to pay a bonus under this 
        subsection shall not be subject to review under any 
        statutory procedure or any agency or negotiated 
        grievance procedure except under any of the laws 
        referred to in [section 2302(d)] section 2303(c) of 
        title 5.

           *       *       *       *       *       *       *

SEC. 1233. TRANSITION SEPARATION INCENTIVE PAYMENTS.

    (a) * * *
    (b) A decision by the Commission to exercise or to not 
exercise the authority to pay a transition separation incentive 
under this section shall not be subject to review under any 
statutory procedure or any agency or negotiated grievance 
procedure except under any of the laws referred to in [section 
2302(d)] section 2302(d) of title 5.

           *       *       *       *       *       *       *

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