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[Senate Report 115-74]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 93
115th Congress    }                                      {      Report
                                 SENATE
                                                                 
 1st Session      }                                      {      115-74

_______________________________________________________________________

                                     

         OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2017

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                 S. 582

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                  May 18, 2017.--Ordered to be printed
                  
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

69-010                         WASHINGTON : 2017                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
                  
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

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

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

                                                       Calendar No. 93
115th Congress    }                                      {      Report
                                 SENATE
                                                                 
 1st Session      }                                      {      115-74

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

 
         OFFICE OF SPECIAL COUNSEL REAUTHORIZATION ACT OF 2017

                                _______
                                

                  May 18, 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. 582]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 582) to reauthorize 
the Office of Special Counsel, and for other purposes, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................7
 IV. Section-by-Section Analysis......................................7
  V. Evaluation of Regulatory Impact.................................10
 VI. Congressional Budget Office Cost Estimate.......................10
VII. Changes in Existing Law Made by the Bill, as Reported...........12

                         I. Purpose and Summary

    The purpose of S. 582, the Office of Special Counsel 
Reauthorization Act of 2017, is to reauthorize the Office of 
Special Counsel (OSC) through fiscal year 2022 and provide 
updated authorities to the OSC. The bill will enhance the OSC's 
authority to investigate allegations of prohibited personnel 
practices and to seek corrective actions from Federal agencies, 
as well as provide additional protections for Federal employees 
who make disclosures of waste, fraud, abuse or misconduct in 
the Federal Government.\1\
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    \1\On May 25, 2016, the Committee approved S. 2968, the Office of 
Special Counsel Reauthorization Act of 2016. That bill is substantially 
similar to S. 582. Accordingly, this committee report is in large part 
a reproduction of Chairman Johnson's committee report for S. 2968, S. 
Rep. No. 114-360 (2016).
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              II. Background and the Need for Legislation

    Congress first created the position of Special Counsel in 
the Civil Service Reform Act of 1978.\2\ The Special Counsel 
was originally created as a position within the Merit Systems 
Protection Board (Board) to investigate disclosures of 
violations of law and waste, fraud, and abuse in the Federal 
Government, to investigate allegations of prohibited personnel 
practices and whistleblower retaliation, and to file complaints 
against agency officials and Federal employees who engage in 
these actions.\3\ Congress removed the Special Counsel from the 
Board when it established the OSC in the Whistleblower 
Protection Act of 1989 (WPA).\4\ The WPA authorized the OSC 
through fiscal year 1992.\5\ Congress reauthorized the OSC from 
1993 to 1997\6\ and from 2002 to 2007.\7\ Since 2008, however, 
the OSC has received funding and continued operating without 
additional authorizing legislation.
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    \2\Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 
1111, 1122-31 (1978).
    \3\Id. at 1122, 1125.
    \4\Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 
Stat. 16, 19-29 (1989).
    \5\Id. at 34.
    \6\Pub. L. No. 103-424, 108 Stat. 4361 (to reauthorize the Office 
of Special Counsel, and for other purposes).
    \7\Pub. L. No. 107-304, 2, 116 Stat. 2363, 2364 (to amend title 5, 
United States Code, to allow certain catch-up contributions to the 
Thrift Savings Plan to be made by participants age 50 or over; to 
reauthorize the Merit Systems Protection Board and the Office of 
Special Counsel; and for other purposes).
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    The OSC is responsible for receiving whistleblower 
disclosures of waste, fraud, and abuse and for receiving and 
investigating allegations of prohibited personnel practices,\8\ 
including whistleblower retaliation.\9\ In the case of 
whistleblower disclosures, the OSC reviews the allegations and 
determines whether there is a substantial likelihood that the 
disclosure evidences waste; abuse; violations of laws, rules or 
regulations; gross mismanagement, or a danger to public health 
and safety.\10\ The OSC provides the disclosure to the 
appropriate agency head and requires the agency head to 
investigate the disclosure and report its findings to the OSC, 
which will be transmitted to the President and Congress.\11\ 
For alleged prohibited personnel practices, the OSC 
investigates the allegations and, if it determines that a 
prohibited personnel practice occurred, seeks corrective action 
either from the agency or from the Board.\12\
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    \8\5 U.S.C. 2302(b).
    \9\5 U.S.C. 1212(a).
    \10\5 U.S.C. 1213(a),(b).
    \11\5 U.S.C. 1213(c)-(e).
    \12\5 U.S.C. 1214.
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    Special Counsel Carolyn Lerner told the Committee at a 
January 12, 2016, hearing that ``[OSC] is engaged in the most 
productive period in its history.''\13\ The number of 
complaints filed with and reviewed by the OSC has steadily 
increased over the past few years. In fiscal year 2016, roughly 
6,000 new cases were filed with the OSC.\14\ Fiscal year 2015 
was the first time in the history of the OSC that it received 
more than 6,000 new cases.\15\
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    \13\Nomination of Michael J. Missal to be Inspector General, U.S. 
Department of Veterans Affairs, and the Honorable Carolyn N. Lerner to 
be Special Counsel, Office of Special Counsel: Hearing Before the S. 
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) 
(statement of Carolyn N. Lerner, Special Counsel, Office of Special 
Counsel).
    \14\Office of Special Counsel, Performance and Accountability 
Report for Fiscal Year 2016, 10 (2016), available at https://osc.gov/
Resources/OSC-FY2016-PAR-15Nov2016.pdf.
    \15\Office of Special Counsel, Performance and Accountability 
Report for Fiscal Year 2015, 4, 10 (2015), available at https://
osc.gov/Resources/FY%202015%20PAR-16Nov2015%20Final.pdf.
---------------------------------------------------------------------------
    With the significant increase in its caseload, there are 
several challenges the OSC faces that can be addressed through 
reauthorization legislation. The OSC recommended to Congress 
changes to help the agency be more productive in light of the 
increasing workload, to improve its access to agency 
information, and to improve agency accountability for actions 
ordered by the OSC.\16\
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    \16\Reauthorization of the U.S. Office of Special Counsel: Hearing 
Before the Subcomm. on Gov't Operations of the H. Comm. on Oversight & 
Gov't Reform, 114th Cong. (2015) (statement of Carolyn N. Lerner, 
Special Counsel, Office of Special Counsel) [hereinafter ``House 
Hearing''].
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Lack of statutory authority to access documents

    On occasion, an obstacle in OSC investigations is the lack 
of explicit statutory authority by the OSC to request 
information from agencies. Currently, authority to request 
information from agencies only exists in regulation.\17\ The 
OSC wrote to the Committee:
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    \17\Id. See also 5 C.F.R. 5.4 (2016).

          Although federal agencies generally work with OSC to 
        fulfill OSC's document requests, some agencies do not 
        provide timely and complete responses to our document 
        requests under 5 C.F.R. 5.4. The failure to provide 
        such responses can significantly delay and impede OSC's 
        investigations. Specifically, agencies sometimes 
        withhold documents and other information responsive to 
        OSC requests by improperly asserting the attorney-
        client privilege. In these cases, OSC must often engage 
        in prolonged disputes over information to which OSC is 
        clearly entitled. This undermines the effectiveness of 
        whistleblower laws, wastes precious resources, and 
        prolongs OSC investigations.\18\
---------------------------------------------------------------------------
    \18\Letter from Carolyn N. Lerner, Special Counsel, Office of 
Special Counsel, to Senator Ron Johnson, Chairman, and Senator Claire 
McCaskill, Ranking Member, S. Comm. on Homeland Sec. & Governmental 
Affairs (March 13, 2017).

---------------------------------------------------------------------------
    Special Counsel Lerner provided testimony asserting that:

          Neither OSC's governing statutes, nor applicable OPM 
        regulations authorize an agency to withhold information 
        from OSC based on an assertion of attorney-client 
        privilege by a government attorney acting on behalf of 
        a government agency and no court has ever held that the 
        attorney-client privilege can be asserted during intra-
        governmental administrative investigations.\19\
---------------------------------------------------------------------------
    \19\Transparency at TSA: Hearing Before the Subcomm. on Gov't 
Operation of the H. Comm. on Oversight & Gov't Reform, 115th Cong. 
(2017) (statement of Carolyn N. Lerner, Special Counsel, Office of 
Special Counsel).

---------------------------------------------------------------------------
    The OSC wrote to the Committee:

          Although the attorney-client privilege protects 
        certain communications between a lawyer and a client, 
        there is simply no basis for a federal agency to assert 
        privilege during an OSC investigation. Congress has 
        directed OSC to conduct investigations as objective 
        fact-finders, similar to Inspectors General and the 
        Government Accountability Office. Indeed, Congress has 
        made clear that there is a strong public interest in 
        exposing government wrongdoing and upholding merit 
        system principles. To uphold this public interest, OSC 
        routinely reviews communications between management 
        officials and agency counsel to determine whether an 
        agency acted with a legitimate or unlawful basis in 
        taking action against a whistleblower. Federal agencies 
        have no legitimate basis to use privileges to conceal 
        evidence of prohibited practices from the agency the 
        Congress charged with investigating them. . . . 
        Congress created OSC as an intra-executive branch 
        investigative agency to investigate whether prohibited 
        conduct occurred. That purpose is frustrated when 
        agencies withhold information.\20\
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    \20\Letter from Carolyn N. Lerner, supra note 18.

    For whistleblower disclosure cases, the OSC referred almost 
200 disclosures to agencies for further investigation from 
fiscal years 2013 through 2015\21\ and sent 78 disclosure 
reports in fiscal year 2016.\22\ Approximately 90 percent of 
the disclosures from fiscal years 2013 through 2015 and 87 
percent of those in fiscal year 2016 were wholly or partially 
substantiated by the agencies.\23\ However, some of the 
corrective action plans submitted to the OSC in response to the 
identified misconduct are ``insufficient or incomplete.''\24\ 
For this, the OSC recommended to Congress that agencies be 
required ``to provide an explanation if they fail to take 
action, including disciplinary action, in the case of 
substantiated misconduct. And . . . OSC should have the 
statutory authority to request and receive detailed follow-up 
information.''\25\
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    \21\House Hearing, supra note 16.
    \22\Office of Special Counsel, supra note 14 at 11.
    \23\Id. See also House Hearing, supra note 16.
    \24\Id.
    \25\Id.
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Unauthorized access of medical records

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

        A[n] . . . ongoing concern is the unlawful accessing of 
        employee medical records in order to discredit 
        whistleblowers. In many instances, VA employees are 
        themselves veterans and receive care at VA hospitals. 
        In several cases, the medical records of whistleblowers 
        have been accessed and information in those records has 
        apparently been used to attempt to discredit the 
        whistleblowers.\26\
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    \26\Addressing Continued Whistleblower Retaliation Within the VA: 
Hearing Before the H. Subcomm. on Oversight and Investigations of the 
Comm. on Veterans Affairs, 114th Cong. (2015) (statement of Carolyn 
Lerner, Special Counsel, Office of Special Counsel).

    This Committee also heard testimony on September 22, 2015, 
from Brandon Coleman, a medical professional of the Phoenix, 
Arizona VA health care system, who alleged that his own medical 
treatment records were repeatedly accessed by some of his co-
workers after he disclosed concerns that the VA was mishandling 
suicidal veterans.\27\ According to Mr. Coleman, the VA then 
attempted to terminate his employment using information from 
those improperly-accessed medical records.\28\ A co-founder of 
the VA Truth Tellers, an organization of whistleblowers who 
have experienced retaliation since disclosing misconduct in the 
VA, testified that he has talked with more than 50 
whistleblowers across the country who allege that have had 
their medical records accessed.\29\
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    \27\Improving VA Accountability: Examining Firsthand Accounts of 
Department of Veterans Affairs Whistleblowers: Hearing Before the S. 
Comm. on Homeland Sec. and Governmental Affairs, 114th Cong. (2015) 
(statement of Brandon Coleman, Sr., Ph.D., Addiction Therapist, Phoenix 
Veterans Affairs Health Care System).
    \28\Id.
    \29\Id. (testimony of Shea Wilkes, Licensed Clinical Social Worker, 
Overton VA Medical Center).
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Onerous requirements to close cases

    In light of the ``skyrocketing caseloads'' of whistleblower 
complaints from the VA and other agencies, the OSC requested 
that Congress consider revising the procedural requirements 
that the OSC must undertake for each and every complaint it 
receives.\30\ Under current law, the OSC is required to send 
several documents to complainants, regardless of whether the 
complaint is repetitive, adjudicated by the Board, or filed 
several years after the matter of the complaint occurred.\31\ 
According to the OSC, ``these requirements require us to devote 
significant resources to closing non-meritorious complaints, 
instead of focusing on prosecuting and resolving meritorious 
cases.''\32\
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    \30\Id. (statement of Carolyn Lerner, Special Counsel, Office of 
Special Counsel).
    \31\5 U.S.C. 1214.
    \32\Improving VA Accountability, supra note 39 (statement of 
Carolyn Lerner).
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Protecting the OSC's own employees

    While OSC is charged with protecting Federal 
whistleblowers, last year's results from an annual survey of 
Federal employees, including employees at OSC, suggests the 
agency may benefit from additional oversight and enhanced 
whistleblower protections for its own employees, but this 
year's results evidence OSC's commitment to improving employee 
engagement and satisfaction.
    Each year, OPM conducts the Federal Employee Viewpoint 
Survey (FEVS), which provides employees an opportunity to 
``candidly share their perceptions of their work experiences, 
their agencies, and their leaders.''\33\ A significant concern 
raised by the Partnership for Public Service report on the 2015 
FEVS survey is that only 41.5 percent of OSC employees 
responded positively to the questions ``Arbitrary actions, 
personal favoritism, and coercion for partisan political 
purposes are not tolerated,'' and ``I can disclose a suspected 
violation of any law, rule, or regulation without fear of 
reprisal.''\34\ Reports of recent survey results indicate OSC 
is making progress to address the 2015 survey results.\35\ For 
the 2016 FEVS, OSC employees reported double digit improvements 
from 2015 to these questions, as well as for the question 
``Prohibited personnel practices . . . are not tolerated.''\36\ 
As the agency charged with investigating and redressing 
prohibited personnel practice violations in other Federal 
agencies, it is important for OSC to lead by example by 
continuing to improve on these issues in the eyes of its 
employees.
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    \33\Office of Personnel Management, Federal Employee Viewpoint 
Survey Results: Gov't Mgmt Report, 2 (2015), available at https://
www.fedview.opm.gov/2015FILES/2015-FEVS-Gwide-Final-Report.PDF.
    \34\P'ship for Pub. Serv., The Best Places to Work in the Fed. 
Gov't, Effective Leadership: Fairness (2015), available at http://
bestplacestowork.org/BPTW/rankings/categories/small/leadership-sub-
fairness-15.
    \35\Office of Personnel Management, Federal Employee Viewpoint 
Survey Results (2016), available at https://unlocktalent.gov/us-office-
of-special-counsel.
    \36\Office of Special Counsel, Federal Employee ViewPoint Survey 
Results: 2012-2016 Comparison (2016), available at https://osc.gov/
Resources/fevs-2012-2016-comparison.pdf.
---------------------------------------------------------------------------
    The poor results for the OSC in the 2015 employee survey 
moved Chairman Johnson to request a programmatic review of OSC 
by the Government Accountability Office (GAO).\37\ As a part of 
its review, Chairman Johnson requested that GAO assess 
``whether there are adequate safeguards in place for proper 
oversight of OSC.''\38\ These safeguards include the procedure 
for OSC employee reporting of disclosures or prohibited 
personnel practices, the adequacy of the agreement between the 
OSC and the National Science Foundation Inspector General for 
such reporting, and the adequacy of the mechanisms to prevent a 
conflict of interest of the Special Counsel or Deputy Special 
Counsel in the event of an investigation of OSC by the 
Integrity Committee of the Council of the Inspectors General on 
Integrity and Efficiency.\39\
---------------------------------------------------------------------------
    \37\Letter from Senator Ron Johnson, Chairman, S. Comm. on Homeland 
Sec. and Governmental Affairs, to Gene Dodaro, Comptroller General, 
Gov't Accountability Off. (Apr. 25, 2016).
    \38\Id.
    \39\Id.
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    OSC also responded to these employee survey results with an 
internal performance review that merits application government-
wide. In 2016, OSC began evaluating its managers on adherence 
to whistleblower protection laws and policies as a critical 
element in their performance plans.\40\ In addition to existing 
criteria for performance reviews, ``managers will be required 
to foster an environment that promotes disclosures and prevents 
retaliation.''\41\ This performance requirement on 
whistleblower protection for OSC employees is unique from other 
Federal agencies, as Federal law does not require agencies' 
performance appraisal systems to consider employee adherence to 
whistleblower protection laws.\42\
---------------------------------------------------------------------------
    \40\Charles S. Clark, Whistleblower Protection Agency Looks to 
Clean Up Its Own Backyard, Government Executive (Apr. 1, 2016), http://
www.govexec.com/oversight/2016/04/whistleblower-protection-agency-
looks-clean-its-own-backyard/127189/.
    \41\Id.
    \42\5 U.S.C. 4302.
---------------------------------------------------------------------------

Conclusion

    Special Counsel Lerner told the Committee that 
``reauthorization provides Congress with an opportunity to 
evaluate OSC's authorities and responsibilities and make any 
necessary adjustments.''\43\ This reauthorization of OSC, which 
provides OSC with statutory authority to access information, an 
enhanced ability to oversee agency implementation of corrective 
actions, and streamlined procedures for reviewing allegations, 
along with additional whistleblower protections, will help 
ensure that Federal employees have an avenue for recourse 
should they be faced with retaliatory personnel actions after 
disclosing waste, fraud, and abuse in the Federal Government.
---------------------------------------------------------------------------
    \43\Improving VA Accountability: Examining First-Hand Accounts of 
Department of Veterans Affairs Whistleblowers: Hearing Before the S. 
Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015) 
(statement of Carolyn N. Lerner, Special Counsel, Office of Special 
Counsel).
---------------------------------------------------------------------------

                        III. Legislative History

    S. 582, the Office of Special Counsel Reauthorization Act 
of 2017, was introduced on March 8, 2017, by Chairman Ron 
Johnson, Ranking Member Claire McCaskill, and Senator Chuck 
Grassley. Senators Steve Daines and Ron Wyden joined as co-
sponsors on March 9, 2016 and March 21, 2017, respectively. The 
bill was referred to the Committee on Homeland Security and 
Governmental Affairs.
    The Committee considered S. 582 at a business meeting on 
March 15, 2017. During the business meeting, one amendment by 
Ranking Member McCaskill was offered. The amendment removed a 
provision that denied individuals an opportunity to respond in 
the event the investigation of their allegation is closed 
without further inquiry under section 8 of this bill, while 
still allowing OSC to circumvent previous statutory procedural 
requirements for closing cases.
    Both the McCaskill amendment and the legislation as amended 
were approved by voice vote en bloc with Senators Johnson, 
Portman, Lankford, Daines, McCaskill, Carper, Tester, Heitkamp, 
Peters, Hassan, and Harris present.

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

Section 1. Short title

    This section establishes the short title of the bill as the 
``Office of Special Counsel Reauthorization Act of 2017.''

Section 2. Adequate access of special counsel to information

    This section authorizes the OSC to have timely access to 
all documents or other information that relate to a matter 
within the jurisdiction or authority of the OSC that are in the 
possession of a Federal agency. This section also clarifies 
that a Federal agency cannot withhold any information from the 
OSC, an independent Federal agency, on the basis of common law 
privilege and that providing such information does not waive 
any assertion of privilege by the Federal agency in any other 
proceeding. The Attorney General or an Inspector General may 
withhold material from OSC if disclosure could interfere with 
an ongoing criminal investigation or prosecution. In the event 
of such a withholding, the Attorney General or Inspector 
General must submit a written report to OSC describing the 
withheld material and the reason for withholding it. If an 
agency does withhold information or fail to comply with a 
request by the OSC, the OSC is required to report this to 
Congress.

Section 3. Information on whistleblower protections

    This section delineates the responsibilities of Federal 
agency heads for preventing prohibited personnel practices, 
enforcing Federal whistleblower protection laws, and training 
Federal employees on their rights to make disclosures and their 
remedies should they be subject to prohibited personnel 
practices. This section requires agencies to provide training 
to supervisors on whistleblower protections and how to respond 
to an allegation of a violation of whistleblower protection 
laws. This section also requires agencies to notify an employee 
of his or her appeals rights when subject to an adverse action. 
This notification must inform the employee of the available 
forums in which an appeal can be filed and the effect on the 
employee's appeal rights based on the selected forum for 
appeal.

Section 4. Additional whistleblower provisions

    This section provides additional tools for the OSC, the 
Board, and Federal agencies to prevent, investigate, or correct 
whistleblower retaliation in the Federal workplace.
    Subsection (a) makes additions to the types of actions that 
may constitute a prohibited personnel practice. The accessing 
of a medical record of an employee or applicant for employment 
can be considered a prohibited personnel practice. A personnel 
action taken against an employee because the employee 
cooperated with an internal agency review or investigation or 
because the employee refused to obey an order that would 
require the employee to violate a rule or regulation can also 
be considered a prohibited personnel action. An applicant for 
employment who made a disclosure before the applicant's 
appointment to Federal service can be covered under 
whistleblower protection laws. This subsection also clarifies 
that an employee with a principal job function of investigating 
and disclosing wrongdoing will not be excluded from 
whistleblower protection laws if the employee can demonstrate 
that a personnel action taken against him or her was in 
reprisal for a disclosure.
    Subsection (b) allows the OSC to request additional 
information from a Federal agency in its response to a finding 
by the OSC of a prohibited personnel practice. This subsection 
also extends the amount of time for the OSC to review a 
complaint for a substantial likelihood that the complainant 
discloses information warranting further investigation.
    Subsection (c) requires an agency to give priority to the 
transfer request of an employee who is the subject of an action 
for which the Board grants a stay.
    Subsection (d) allows the OSC to seek corrective action for 
a Federal agency investigation of an employee that was started, 
expanded, or extended in retaliation for a disclosure or 
protected activity by the employee, regardless of whether the 
agency investigation resulted in a personnel action against the 
employee.

Section 5. Suicide by employees

    This section requires an agency to refer to OSC any 
instance in which an employee of the agency committed suicide 
after making a disclosure of wrongdoing and then being subject 
to a personnel action. OSC shall review the personnel action 
taken against the employee as a result of the disclosure and 
take appropriate action.

Section 6. Protection of whistleblowers as criteria in performance 
        appraisals

    This section requires agencies to include whistleblower 
protection in performance evaluations for supervisors.
    Subsection (a) requires Federal agencies to develop 
criteria by which whistleblower protection is evaluated in the 
performance appraisals for supervisory employees. This 
criterion will also consider the number of instances in which 
an agency entered into an agreement with an individual based on 
an allegation of a prohibited personnel practice committed by 
the supervisor.
    Subsection (b) requires agencies to include the 
whistleblower protection criteria in the evaluation of a 
supervisory employee.
    Subsection (c) requires Federal agencies to submit an 
annual report to Congress detailing the number of performance 
appraisals in which supervisory employees were determined to 
have unacceptable performance under the whistleblower 
protection criteria.

Section 7. Discipline of supervisors based on retaliation against 
        whistleblowers

    Under this section, an agency head must propose 
disciplinary action against a supervisor if the agency head, an 
administrative law judge, the Board, OSC, a United States 
judge, or the agency Inspector General determines that the 
supervisor committed a prohibited personnel action. The 
proposed disciplinary action must be at least a suspension of 
three days for the first finding of a prohibited personnel 
action by the supervisor and removal for any subsequent finding 
of committing a prohibited personnel practice by the 
supervisor. The supervisor will be entitled to written notice 
of the proposed disciplinary action and an opportunity to 
answer and furnish evidence in support of the answer. If the 
agency head is responsible for deciding whether a supervisor 
committed a prohibited personnel practice, the agency head 
cannot delegate that responsibility.

Section 8. Termination of certain investigations by the Office of 
        Special Counsel

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

Section 9. Allegations of wrongdoing within the Office of Special 
        Counsel

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

Section 10. Reporting requirements

    This section revises the information required in the annual 
report submitted to Congress by the OSC. This section also 
requires OSC to report to Congress when a complaint filed with 
OSC is resolved by an agreement between the agency and the 
complainant, including the allegation and any disciplinary 
action taken by the agency as a result of the complaint.

Section 11. Establishment of survey pilot program

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

Section 12. Regulations

    This section requires OSC to prescribe regulations as 
necessary to perform its functions within two years of 
enactment of this bill.

Section 13. Authorization of appropriations

    This section authorizes appropriations of sums necessary 
for the OSC to carry out the provisions of this title through 
fiscal year 2022.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                                      May 12, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 582, the Office of 
Special Counsel Reauthorization Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 582--Office of Special Counsel Reauthorization Act of 2017

    Summary: S. 582 would authorize appropriations for the 
Office of Special Counsel (OSC) for fiscal years 2017 through 
2022. The bill also would amend several of the laws governing 
the OSC and would extend new legal protections to federal 
employees (known as whistleblowers) who report abuse, fraud, 
and waste related to government activities.
    CBO estimates that implementing this legislation would cost 
$155 million over the 2017-2022 period, assuming appropriation 
of the necessary amounts. Enacting S. 582 would not affect 
direct spending or revenues; therefore, pay-as-you-go 
procedures do not apply.
    CBO estimates that enacting S. 582 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    S. 582 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.
    Estimated cost to the Federal Government: The estimated 
budgetary effects of S. 582 are shown in the following table. 
The costs of this legislation fall within budget function 800 
(general government).

----------------------------------------------------------------------------------------------------------------
                                                          By fiscal year, in millions of dollars--
                                          ----------------------------------------------------------------------
                                             2017      2018      2019      2020      2021      2022    2017-2022
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Office of Special Counsel:a
    Estimated Authorization Level........         0        26        27        28        29        30        140
    Estimated Outlays....................         0        24        27        28        29        30        138
Whistleblower Provisions:
    Estimated Authorization Level........         0         2         2         2         2         2         10
    Estimated Outlays....................         0         2         2         2         2         2         10
Other Provisions:
    Estimated Authorization Level........         0         2         2         1         1         1          7
    Estimated Outlays....................         0         2         2         1         1         1          7
    Total Increases:
        Estimated Authorization Level....         0        30        31        31        32        33        157
        Estimated Outlays................         0        28        31        31        32        33        155
----------------------------------------------------------------------------------------------------------------
a. The Office of Special Council received an appropriation of $25 million for 2017.

    Basis of estimate: For this estimate, CBO assumes that S. 
582 will be enacted near the end of fiscal year 2017, that the 
necessary amounts will be appropriated each year, and that 
spending will follow historical spending patterns for the 
agency.
    Under current law, the OSC investigates complaints 
regarding reprisals against federal employees who inform 
authorities of fraud or other improprieties in the operation of 
federal programs. The OSC can order corrective action (such as 
job restoration, back pay, and reimbursement of attorneys' fees 
and medical costs) for valid complaints. If agencies fail to 
take corrective actions, the OSC or the employee can pursue a 
case through the Merit Systems Protection Board (MSPB) for 
resolution.

Office of Special Counsel

    Section 13 of the bill would authorize appropriations from 
2017 through 2022 of whatever amounts may be necessary for OSC 
operations. In 2017, the OSC received on appropriation $25 
million. CBO estimates that continuing activities at that level 
and accounting for the effects of anticipated inflation, would 
cost $138 million over the 2018-2022 period.

Whistleblower provisions

    Under current law, when settling employment disputes 
between the federal government and employees over prohibited 
personnel practices, federal agencies are required to pay an 
employee's attorney fees, any retroactive salary payments, and 
any travel or medical costs associated with the claim. S. 582 
would expand legal protections for whistleblowers and would 
allow the OSC to seek corrective action for federal employees 
who suffered retaliation by their agency.
    According to the MSPB and the OSC, those new legal 
protections would affect a small number of cases, with 
settlement amounts averaging about $20,000 per case. Based on 
information about the probable number of such complaints (less 
than five per agency) and the cost of similar corrective 
actions provided by MSPB and OSC, CBO estimates that the new 
legal protections would increase awards and administrative 
costs by about $80,000 for each of the 26 major federal 
agencies each year--for a total federal cost of about $2 
million annually.

Other provisions

    S. 582 also would codify and expand some policies and 
practices of the federal government designed to prevent 
retaliation against whistleblowers. Under the bill agencies 
would be required to conduct additional employee training on 
those polices and prepare reports on matters pertaining to 
whistleblowers. Based on information from the OSC, the MSPB, 
and on the costs of similar requirements, CBO estimates that 
implementing those provisions would cost about $7 million over 
the 2018-2022 period.
    Pay-As-You-Go considerations: None.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting S. 582 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    Intergovernmental and Private-sector impact: S. 582 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal costs: Matthew Pickford; 
impact on state, local, and tribal governments: Zach Bryum; 
impact on the private-sector: Paige Piper/Bach.
    Estimate approved by: H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

       VII. Changes in Existing law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

UNITED STATES CODE

           *       *       *       *       *       *       *

TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

           *       *       *       *       *       *       *

PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES

           *       *       *       *       *       *       *

CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL, 
AND EMPLOYEE RIGHT OF ACTION

           *       *       *       *       *       *       *

Subchapter II--Office of Special Counsel

           *       *       *       *       *       *       *

SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL

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

           *       *       *       *       *       *       *

          (5)(A) Except as provided in subparagraph (B), the 
        Special Counsel, in carrying out this subchapter, is 
        authorized to--
                  (i) have timely access to all records, data, 
                reports, audits, reviews, documents, papers, 
                recommendations, or other material available to 
                the applicable agency that relate to an 
                investigation, review, or inquiry conducted 
                under--
                          (I) section 1213, 1214, 1215, or 1216 
                        of this title; or
                          (II) section 4324(a) of title 38;
                  (ii) request from any agency the information 
                or assistance that may be necessary for the 
                Special Counsel to carry out the duties and 
                responsibilities of the Special Counsel under 
                this subchapter; and
                  (iii) require, during an investigation, 
                review, or inquiry of an agency, the agency to 
                provide to the Special Counsel any record or 
                other information that relates to an 
                investigation, review, or inquiry conducted 
                under--
                          (I) section 1213, 1214, 1215, or 1216 
                        of this title; or
                          (II) section 4324(a) of title 38;
          (B)(i) The authorization of the Special Counsel under 
        subparagraph (A) shall not apply with respect to any 
        entity that is an element of the intelligence 
        community, as defined in section 3 of the National 
        Security Act of 1947 (50 U.S.C. 3003), unless the 
        Special Counsel is investigating, or otherwise carrying 
        out activities relating to the enforcement of, an 
        action under subchapter III of chapter 73.
                  (ii) The Attorney General or an Inspector 
                General may withhold from the Special Counsel 
                material described in subparagraph (A) if--
                          (I) disclosing the material could 
                        reasonably be expected to interfere 
                        with a criminal investigation or 
                        prosecution that is ongoing as of the 
                        date on which the Special Counsel 
                        submits a request for the material; and
                          (II) the Attorney General or the 
                        Inspector General, as applicable, 
                        submits to the Special Counsel a 
                        written report that describes--
                                  (aa) the material being 
                                withheld; and
                                  (bb) the reason that the 
                                material is being withheld.
          (C)(i) A claim of common law privilege by an agency, 
        or an officer or employee of an agency, shall not 
        prevent the Special Counsel from obtaining any material 
        described in subparagraph (A)(i) with respect to the 
        agency.
                  (ii) The submission of material described in 
                subparagraph (A)(i) by an agency to the Special 
                Counsel may not be deemed to waive any 
                assertion of privilege by the agency against a 
                non-Federal entity or against an individual in 
                any other proceeding.
                  (iii) With respect to any record or other 
                information made available to the Special 
                Counsel by an agency under subparagraph (A), 
                the Special Counsel may only disclose the 
                record or information for a purpose that is in 
                furtherance of any authority provided to the 
                Special Counsel in this subchapter.
          (6) The Special Counsel shall submit to the Committee 
        on Homeland Security and Governmental Affairs of the 
        Senate, the Committee on Oversight and Government 
        Reform of the House of Representatives, and each 
        committee of Congress with jurisdiction over the 
        applicable agency a report regarding any case of 
        contumacy or failure to comply with a request submitted 
        by the Special Counsel under paragraph (5)(A).

           *       *       *       *       *       *       *

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

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

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

           *       *       *       *       *       *       *

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

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

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *

                  (E) If the Board grants a stay under 
                subparagraph (A), the head of the agency 
                employing the employee who is the subject of 
                the action shall give priority to a request for 
                a transfer submitted by the employee.

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *

SEC. 1218. ANNUAL REPORT.

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

SEC. 1219. PUBLIC INFORMATION.

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

           *       *       *       *       *       *       *

SEC. 1219. TRANSMITTAL OF INFORMATION TO CONGRESS.

    (a) In General.--The Special Counsel [The Special Counsel] 
or any employee of the Special Counsel designated by the 
Special Counsel shall transmit to the Congress on the request 
of any committee or subcommittee thereof, by report, testimony, 
or otherwise, information and the Special Counsel's view on 
functions, responsibilities, or other matters relating to the 
Office. Such information shall be transmitted concurrently to 
the President and any other appropriate agency in the executive 
branch.
    (b) Additional Report Required.--
          (1) In general.--If an allegation submitted to the 
        Special Counsel is resolved by an agreement between an 
        agency and an individual, the Special Counsel shall 
        submit to Congress and each congressional committee 
        with jurisdiction over the agency a report regarding 
        the agreement.
          (2) Contents.--The report required under paragraph 
        (1) shall identify, with respect to an agreement 
        described in that paragraph--
                  (A) the agency that entered into the 
                agreement;
                  (B) the position and employment location of 
                the employee who submitted the allegation that 
                formed the basis of the agreement;
                  (C) the position and employment location of 
                any employee alleged by an employee described 
                in subparagraph (B) to have committed a 
                prohibited personnel practice, as defined in 
                section 2302(a)(1);
                  (D) a description of the allegation described 
                in subparagraph (B); and
                  (E) whether the agency that entered into the 
                agreement has agreed to pursue any disciplinary 
                action as a result of the allegation described 
                in subparagraph (B).

           *       *       *       *       *       *       *

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

    (a) * * *

           *       *       *       *       *       *       *

    (k) If the Board grants a stay under subsection (c) and the 
employee who is the subject of the action is in probationary 
status, 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 SYSTEMS PRINCIPLES

           *       *       *       *       *       *       *

SEC. 2302. PROHIBITED PERSONNEL PRACTICES.

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

           *       *       *       *       *       *       *

          (9) * * *
                  (A) * * *
                  (B) * * *
                  (C) cooperating with or disclosing 
                information to the Inspector General (or any 
                other component responsible for internal 
                investigation or review) of an agency, or the 
                Special Counsel, in accordance with applicable 
                provisions of law; or
                  (D) for refusing to obey an order that would 
                require the individual to violate a law, rule, 
                or regulation;

           *       *       *       *       *       *       *

          (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 and 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.]
    (c)(1) In this subsection--
          (A) the term ``new employee'' means an individual--
                  (i) appointed to a position as an employee on 
                or after the date of enactment of the Office of 
                Special Counsel Reauthorization Act of 2017; 
                and
                  (ii) who has not previously served as an 
                employee; and
          (B) the term ``whistleblower protections'' means the 
        protections against and remedies for a prohibited 
        personnel practice described in paragraph (8) or 
        subparagraph (A)(i), (B), (C), or (D) of paragraph (9) 
        of subsection (b).
      (2) The head of each agency shall be responsible for--
          (A) preventing prohibited personnel practices;
          (B) complying with and enforcing applicable civil 
        service laws, rules, and regulations, and other aspects 
        of personnel management; and
          (C) ensuring, in consultation with the Special 
        Counsel and the Inspector General of the agency, that 
        employees of the agency are informed of the rights and 
        remedies available to the employees under this chapter 
        and chapter 12, including--
                  (i) information with respect to whistleblower 
                protections available to new employees during a 
                probationary period;
                  (ii) the role of the Office of Special 
                Counsel and the Merit Systems Protection Board 
                with respect to whistleblower protections; and
                  (iii) the means by which, with respect to 
                information that is otherwise required by law 
                or Executive order to be kept classified in the 
                interest of national defense or the conduct of 
                foreign affairs, an employee may make a lawful 
                disclosure of the information to--
                          (I) the Special Counsel;
                          (II) the Inspector General of an 
                        agency;
                          (III) Congress; or
                          (IV) another employee of the agency 
                        who is designated to receive such a 
                        disclosure.
    (3) The head of each agency shall ensure that the 
information described in paragraph (2) is provided to each new 
employee of the agency not later than 180 days after the date 
on which the new employee is appointed.
    (4) The head of each agency shall make available 
information regarding whistleblower protections applicable to 
employees of the agency on the public website of the agency and 
on any online portal that is made available only to employees 
of the agency, if such portal exists.
    (5) Any employee to whom the head of an agency delegates 
authority for any aspect of personnel management shall, within 
the limits of the scope of the delegation, be responsible for 
the activities described in paragraph (2).

           *       *       *       *       *       *       *

    (f)
          (1)
                  (A) * * *

           *       *       *       *       *       *       *

                  (E) the disclosure was made while the 
                employee was off duty; [or]
                  (F) the disclosure was made before the date 
                on which the individual was appointed or 
                applied for appointment to a position; or
                  [F] (G) of the amount of time which was 
                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.]
          (2) If a disclosure is made during the normal course 
        of duties of an employee, the principal job function of 
        whom is to regularly investigate and disclose 
        wrongdoing (in this paragraph referred to as the 
        `disclosing employee'), the disclosure shall not be 
        excluded from subsection (b)(8) if the disclosing 
        employee demonstrates that an employee who has the 
        authority to take, direct other individuals to take, 
        recommend, or approve any personnel action with respect 
        to the disclosing employee took, failed to take, or 
        threatened to take or fail to take a personnel action 
        with respect to the disclosing employee in reprisal for 
        the disclosure made by the disclosing employee.

           *       *       *       *       *       *       *

Subpart C--Employee Performance

           *       *       *       *       *       *       *

CHAPTER 43--PERFORMANCE APPRAISAL

           *       *       *       *       *       *       *

Subchapter I--General Provisions

           *       *       *       *       *       *       *

SEC. 4301. DEFINITIONS.

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

           *       *       *       *       *       *       *

SEC. 4302. ESTABLISHMENT OF PERFORMANCE APPRAISAL SYSTEMS.

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

           *       *       *       *       *       *       *

Subchapter II--Performance Appraisal in the Senior Executive Service

           *       *       *       *       *       *       *

SEC. 4313. CRITERIA FOR PERFORMANCE APPRAISALS.

          (1) * * *

           *       *       *       *       *       *       *

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

           *       *       *       *       *       *       *

Subpart D--Pay and Allowances

           *       *       *       *       *       *       *

CHAPTER 55--PAY ADMINISTRATION

           *       *       *       *       *       *       *

Subchapter I--General Provisions

           *       *       *       *       *       *       *

SEC. 5509. APPROPRIATIONS.

           *       *       *       *       *       *       *

   MERIT SYSTEMS AND PROTECTION BOARD AND OFFICE OF SPECIAL COUNSEL; 
    AUTHORIZATION OF APPROPRIATIONS; RESTRICTION ON APPROPRIATIONS.

    ``(a)
          ``(1)
          ``(2) for each of fiscal years [2003, 2004, 2005, 
        2006, and 2007] 2017 through 2022 such sums as 
        necessary to carry out subchapter II of chapter 12 of 
        title 5, United States Code (as amended by this Act).''

           *       *       *       *       *       *       *

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, 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) has the meaning given the term in section 
                2302(a)(2)(C), 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 of the National Security 
                Act of 1947 (50 U.S.C. 3003);
          (2) the term ``prohibited personnel action'' means 
        taking or failing to take an action in violation of 
        paragraph (8) or (9) 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 in 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 in which a 
        supervisor is employed, 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 in which a supervisor is employed 
        has determined that the supervisor committed a 
        prohibited personnel action, the head of the agency in 
        which the supervisor is employed, consistent with the 
        procedures required under paragraph (2)--
                  (A) for the first prohibited personnel action 
                committed by the supervisor--
                          (i) shall proposed suspending the 
                        supervisor for a period that is not 
                        less than 3 days; and
                          (ii) may propose an additional action 
                        determined appropriate by the head of 
                        the agency, including a reduction in 
                        grade or pay; and
                  (B) for the second prohibited personnel 
                action committed by the supervisor, shall 
                propose removing the supervisor.
          (2) Procedures.--
                  (A) Notice.--A supervisor against whom an 
                action is proposed to be taken under paragraph 
                (1) is entitled to written notice that--
                          (i) states the specific reasons for 
                        the proposed action; and
                          (ii) informs the supervisor about the 
                        right of the supervisor to review the 
                        material that constitutes the factual 
                        support on which the proposed action is 
                        based.
                  (B) Answer and evidence.--
                          (i) In general.--A supervisor who 
                        receives notice under subparagraph (A) 
                        may, not later than 14 days after 
                        receiving the notice, submit an answer 
                        and furnish evidence in support of that 
                        answer.
                          (ii) No evidence furnished; 
                        insufficient evidence furnished.--If, 
                        after the end of the 14-day period 
                        described in clause (i), a supervisor 
                        does not furnish any evidence as 
                        described in that clause, or if the 
                        head of the agency in which the 
                        supervisor is employed determines that 
                        the evidence furnished by the 
                        supervisor is insufficient, the head of 
                        the agency shall carry out the action 
                        proposed under subparagraph (A) or (B) 
                        of paragraph (1).
                  (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 
                        those with respect to an appeal, as an 
                        action under section 7503, 7513, or 
                        7543; and
                          (ii) shall not be subject to--
                                  (I) paragraphs (1) and (2) of 
                                section 7503(b);
                                  (II) paragraphs (1) and (2) 
                                of subsection (b) and 
                                subsection (c) of section 7513; 
                                and
                                  (III) paragraphs (1) and (2) 
                                of subsection (b) and 
                                subsection (c) of section 7543.
          (3) Non-delegation.--If the head of an agency is 
        responsible for determining whether a supervisor has 
        committed a prohibited personnel action for purposes of 
        paragraph (1), the head of the agency may not delegate 
        that responsibility.

                                  [all]
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