U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

69–010 

" ! SENATE 115TH CONGRESS

1st Session 

REPORT

2017

115–74 

Calendar No. 93 

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 

MAY 18, 2017.—Ordered to be printed 


E:\Seals\Congress.#13
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

JON TESTER, Montana 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

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 SENATE REPORT " ! 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 protecVerDate Sep 11 2014 06:03 May 20, 2017 Jkt 069010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR074.XXX SR074
2 

1On 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). 2 Civil Service Reform Act of 1978, Pub. L. No. 95–454, 92 Stat. 1111, 1122–31 (1978). 

3 Id. at 1122, 1125. 

4Whistleblower Protection Act of 1989, Pub. L. No. 101–12, 103 Stat. 16, 19–29 (1989). 

5 Id. at 34. 6Pub. L. No. 103–424, 108 Stat. 4361 (to reauthorize the Office of Special Counsel, and for 

other purposes). 7Pub. 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). 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. 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). 

tions for Federal employees who make disclosures of waste, fraud, 

abuse or misconduct in the Federal Government.1

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. 

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

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 

3 

14Office of Special Counsel, Performance and Accountability Report for Fiscal Year 2016, 10 

(2016), available at https://osc.gov/Resources/OSC-FY2016-PAR-15Nov2016.pdf. 15Office 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. 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’’]. 17 Id. See also 5 C.F.R. 5.4 (2016). 18Letter 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). 19Transparency 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). 

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

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

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: 

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

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

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 

4 

20Letter from Carolyn N. Lerner, supra note 18. 21 House Hearing, supra note 16. 22Office of Special Counsel, supra note 14 at 11. 23 Id. See also House Hearing, supra note 16. 24 Id. 25 Id. 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). 

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

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

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

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 suiciVerDate Sep 11 2014 06:03 May 20, 2017 Jkt 069010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR074.XXX SR074
5 

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). 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). 33Office 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-FinalReport.PDF. 34P’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/leadershipsub-fairness-15. 35Office of Personnel Management, Federal Employee Viewpoint Survey Results (2016), available at https://unlocktalent.gov/us-office-of-special-counsel. 

dal 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

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

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 perVerDate Sep 11 2014 06:03 May 20, 2017 Jkt 069010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR074.XXX SR074
6 

36Office of Special Counsel, Federal Employee ViewPoint Survey Results: 2012–2016 Comparison (2016), available at https://osc.gov/Resources/fevs-2012-2016-comparison.pdf. 37Letter 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. 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/whistleblowerprotection-agency-looks-clean-its-own-backyard/127189/. 41 Id. 42 5 U.S.C. 4302. 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). 

sonnel 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. 

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

OSC also responded to these employee survey results with an internal performance review that merits application governmentwide. 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

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. 

7 

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 

8 

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. 

9 

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. 

10 

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 

11 

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 medVerDate Sep 11 2014 06:03 May 20, 2017 Jkt 069010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR074.XXX SR074
12 

ical 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 

* * * * * * * 

13 

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 

14 

(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 ø15 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, 

15 

abuse of authority, or substantial and specific danger to public 

health and safety. 

(c) * * * 

(d) * * * 

(e) 

(1) øAny 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. 

ø(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— 

ø(A) the findings of the head of the agency appear reasonable; and 

ø(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 øagency 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) * * * 

ø(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 deVerDate Sep 11 2014 06:03 May 20, 2017 Jkt 069010 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\SR074.XXX SR074
16 

termines 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) * * * 

* * * * * * * 

17 

(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. 

øThe 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; 

18 

(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) øa 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 øThe 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. 

19 

(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) * * * 

20 

(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 controllingø.¿; 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). 

ø(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 

21 

(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; øor¿ 

(F) the disclosure was made before the date on which the 

individual was appointed or applied for appointment to a 

position; or 

øF¿ (G) of the amount of time which was passed since 

the occurrence of the events described in the disclosure. 

ø(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 reguVerDate Sep 11 2014 06:23 May 20, 2017 Jkt 069010 PO 00000 Frm 00023 Fmt 6659 Sfmt 6602 E:\HR\OC\SR074.XXX SR074
22 

larly 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. 

øFor 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. 

23 

(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). 

øb¿ (c) * * * 

øc¿ (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; øand¿ 

(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 titleø.¿; 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) 

24 

‘‘(2) for each of fiscal years ø2003, 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— 

25 

(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 EVI- DENCE 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. 

Æ