U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

69–010 

" ! SENATE 115TH CONGRESS

1st Session 

REPORT

2017

115–30 

Calendar No. 39 

FOLLOW THE RULES ACT 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 576 

TO AMEND TITLE 5, UNITED STATES CODE, TO EXTEND CERTAIN 

PROTECTIONS AGAINST PROHIBITED PERSONNEL PRACTICES, AND 

FOR OTHER PURPOSES 

APRIL 24, 2017.—Ordered to be printed 


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(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 


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Calendar No. 39 

115TH CONGRESS REPORT " ! SENATE 1st Session 115–30 

FOLLOW THE RULES ACT 

APRIL 24, 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. 576] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 576) to amend title 5, United 

States Code, to extend certain protections against prohibited personnel practices, and for other purposes, reports favorably thereon 

without amendment and recommends that the bill do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 1 

III. Legislative History ......................................................................................... 3 

IV. Section-by-Section Analysis .......................................................................... 3 

V. Evaluation of Regulatory Impact .................................................................. 4 

VI. Congressional Budget Office Cost Estimate ................................................ 4 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 5 

I. PURPOSE AND SUMMARY

The purpose of S. 576, the Follow the Rules Act, is to protect 

Federal employees from retaliation for refusing to obey an order 

that would violate a rule or regulation. 

II. BACKGROUND AND THE NEED FOR LEGISLATION

This legislation arises in response to a recent decision in Federal 

court interpreting the scope of a provision within the Whistleblower 

Protection Act, commonly referred to as the ‘‘right-to-disobey’’ provision. The ‘‘right to disobey’’ provision protects Federal employees 


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1Whistleblower Protection Act of 1989, § 4(b), Pub. L. No. 101–12, 103 Stat. 16. (1989). See 

also 5 U.S.C. § 2302(b)(9)(D). 2 Rainey v. Merit Systems Protection Board, 824 F.3d 1359 (2016). 3 Id. at 2. 4 Id. at 11. 5Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015). 6 5 U.S.C. § 2302(b)(8)(A); MacLean, 135 S. Ct. at 915 (emphasis added). 7MacLean, 135 S. Ct. at 919. 8 Id. at 921. 9Whistleblower Protection Act of 1989, § 2(a)(2), Pub. L. No. 101–12, 103 Stat. 16. (1989). 

from retaliation ‘‘for refusing to obey an order that would require 

the individual to violate a law.’’ 1

The United States Court of Appeals for the Federal Circuit was 

asked to interpret the scope of that provision recently in Rainey v. 

Merit Systems Protection Board.2 In Rainey, Doctor Timothy Allen 

Rainey, a Federal employee serving as a contracting officer representative for the United States Department of State, alleged: 

[T]hat his duties as a contracting officer representative 

had been taken away because he had refused his supervisor’s order to tell a contractor to rehire a terminated subcontractor. Dr. Rainey argued that his refusal was based 

on his view that carrying out the order would have required him to violate Federal Acquisition Regulation . . . 

by improperly interfering with personnel decisions of a 

prime contractor and requiring the prime contractor to operate in conflict with the terms of the contract.3

The Federal Circuit held that the ‘‘right-to-disobey’’ provision in 

the Whistleblower Protection Act ‘‘is limited to orders that are contrary to a statute, and does not encompass orders that are contrary 

to a regulation.’’ 4 As a result, the Court ruled against Dr. Rainey, 

finding that the agency was justified in its actions against Dr. 

Rainey. 

In limiting the ‘‘right-to-disobey’’ provision, the Federal Circuit 

relied on a 2015 Supreme Court case, Department of Homeland Security v. MacLean.5 In that case, the Court was interpreting the 

‘‘right-to-disclose’’ provision of the Civil Service Reform Act of 1978, 

which prohibits agencies from retaliating against a Federal employee who discloses an alleged ‘‘violation of any law, rule, or regulation, or mismanagement, a gross waste of funds . . .’’ so long as 

‘‘such disclosure is not specifically prohibited by law.’’ 6

The Court reasoned that ‘‘Congress’s choice to say specifically 

prohibited by law’ rather than specifically prohibited by law, rule, 

or regulation’ suggests that Congress meant to exclude rules and 

regulations.’’ 7 Accordingly, the Court held that the limit on lawful 

disclosure applied only to a statute that would prohibit the disclosure, and not to a rule or regulation.8

As part of its findings in the Whistleblower Protection Act, Congress wrote that ‘‘protecting employees who disclose Government illegality, waste, and corruption is a major step toward a more effective civil service.’’ 9 This Committee takes very seriously its responsibility to ensure whistleblowers who report allegations of waste, 

fraud, abuse, and wrongdoing are protected from retaliation. 

In the 114th Congress, this Committee heard from numerous 

Federal whistleblowers who testified regarding Federal agency retaliation against employees who disclose misconduct, waste, fraud, 


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10 Blowing the Whistle on Retaliation: Accounts of Current and Formers Federal Agency Whistleblowers: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. 

(2015). See also Improving VA Accountability: Examining First-Hand Accounts of Department of 

Veterans Affairs Whistleblowers: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2015). See also Joint Field Hearing: Tomah VAMC: Examining 

Quality, Access, and a Culture of Overreliance on High-Risk Medications, Hearing Before the H. 

Comm. on Veterans’ Affairs and the S. Comm. on Homeland Sec. & Governmental Affairs, 114th 

Cong. (2015). 11Majority Staff Report, S. Comm. on Homeland Sec. & Governmental Affairs, The Systematic 

Failures and Preventable Tragedies at the Tomah VA Medical Center, 114th Cong. (2016). 12S. 582, 115th Cong. (2017); S. 585, 115th Cong. (2017); A bill to enhance whistleblower protection for contractor and grantee employees, Pub. L. No. 114–261 (2016). 

and abuse.10 The majority staff for the Committee also issued a 

359-page report about its investigation into systematic failures at 

the Tomah Veterans Affairs Medical Center, detailing the culture 

of fear and whistleblower retaliation at the facility 11 and heard 

from Federal employees who contacted the Committee through the 

Chairman’s whistleblower hotline. In both the 114th and 115th 

Congresses, the Committee passed bipartisan legislation to 

strengthen whistleblower protection laws and to reauthorize the 

Office of Special Counsel, the Federal agency charged with investigating and redressing Federal employee whistleblower retaliation 

claims.12

The Committee believes that refusing to obey any order that 

would violate a law, rule, or regulation, or that a Federal employee 

reasonably believes would violate a law, rule, or regulation, is precisely the type of action from which Federal employees should be 

protected against retaliation. The Follow the Rules Act would ensure that Federal employees are protected in these circumstances. 

III. LEGISLATIVE HISTORY

S. 576, the Follow the Rules Act, was introduced on March 8, 

2017, by Chairman Ron Johnson, Ranking Member Claire McCaskill, and Senators Chuck Grassley and Tammy Baldwin. Senator 

Ron Wyden joined as a cosponsor on March 21, 2017. The bill was 

referred to the Committee on Homeland Security and Governmental Affairs. 

The Committee considered S. 576 at a business meeting on 

March 15, 2017. No amendments were offered. The legislation was 

passed by voice vote en bloc with Senators Johnson, Portman, 

Lankford, Daines, McCaskill, Carper, Tester, Heitkamp, Peters, 

Hassan, and Harris present. 

IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title 

This section establishes the short title of the bill as the ‘‘Follow 

the Rules Act.’’ 

Section 2. Prohibited personnel action based on ordering individual 

to violate rule or regulation 

This section makes it a prohibited personnel practice to take, fail 

to take, or threaten a personnel action against a Federal employee 

because the Federal employee refused to obey an order that would 

violate a law, rule or regulation. 


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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

MARCH 21, 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. 576, the Follow the Rules 

Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

KEITH HALL. 

Enclosure. 

S. 576—Follow the Rules Act 

S. 576 would expand the protections against retaliation that are 

currently given to whistleblowers that refuse to violate federal 

laws. Under the bill those protections would be extended to employees who refuse to violate federal rules and regulations. 

The Merit Systems Protection Board (MSPB) hears claims 

against federal agencies brought by whistleblowers. Expanding the 

scope of the retaliation protections to include violations of federal 

rules and regulations could increase the number of such hearings 

and related costs. However, based on information from the MSPB 

on the likely number of new cases under the bill, CBO expects that 

whistleblower cases dealing with violations of rules and regulations 

would be limited in number. Furthermore, based on an analysis of 

the cost of whistleblower cases, even if the number of cases increased by 20 percent (something CBO thinks would be unlikely) 

under the bill, CBO estimates that the annual cost to process them 

would be less than $500,000. 

Enacting the legislation could affect direct spending by agencies 

not funded through annual appropriations; therefore, pay-as-you-go 

procedures apply. However, CBO estimates that any net increase 

in spending by those agencies would be negligible. Enacting S. 576 

would not affect revenues. 

CBO estimates that enacting S. 576 would not increase net direct 

spending or on-budget deficits in any of the four consecutive 10- 

year periods beginning in 2028. 

S. 576 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act and would impose no costs on state, local, or tribal governments. 


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On February 13, 2017, CBO transmitted an estimate for H.R. 

657, the Follow the Rules Act, as ordered reported by the House 

Committee on Oversight and Government Reform on February 2, 

2017. The two pieces of legislation are similar, and CBO’s estimates of the budgetary effects are the same. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was 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 III—EMPLOYEES 

* * * * * * * 

Subpart A—General Provisions 

* * * * * * * 

CHAPTER 23—MERIT SYSTEMS PRINCIPLES 

* * * * * * * 

SEC. 2302. PROHIBITED PERSONNEL PRACTICES. 

(a) * * * 

(b) * * * 

(1) * * * 

* * * * * * * 

(9) * * * 

(A) * * * 

(B) * * * 

(C) * * * 

(D) for refusing to obey an order that would require the 

individual to violate a law, rule, or regulation; 

* * * * * * * 

Æ 


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