U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

59–010 

" ! SENATE 

114TH CONGRESS

2d Session 

REPORT

2016

114–262 

Calendar No. 499 

DR. CHRIS KIRKPATRICK WHISTLEBLOWER 

PROTECTION ACT OF 2015 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 2127 

TO PROVIDE APPROPRIATE PROTECTIONS TO PROBATIONARY 

FEDERAL EMPLOYEES, TO PROVIDE THE SPECIAL COUNSEL 

WITH ADEQUATE ACCESS TO INFORMATION, TO PROVIDE 

GREATER AWARENESS OF FEDERAL WHISTLEBLOWER 

PROTECTIONS, AND FOR OTHER PURPOSES 

MAY 26, 2016.—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 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

PATRICK J. BAILEY, Chief Counsel for Governmental Affairs 

GABRIELLE A. BATKIN, Minority Staff Director 

JOHN P. KILVINGTON, Minority Deputy Staff Director 

MARY BETH SCHULTZ, Minority Chief Counsel 

KATHERINE C. SYBENGA, Minority Chief Counsel for Governmental Affairs 

LAURA W. KILBRIDE, Chief Clerk 


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Calendar No. 499 

114TH CONGRESS SENATE REPORT " ! 2d Session 114–262 

DR. CHRIS KIRKPATRICK WHISTLEBLOWER PROTECTION 

ACT OF 2015 

MAY 26, 2016.—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. 2127] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 2127) to provide appropriate protections to probationary Federal employees, to provide the Special 

Counsel with adequate access to information, to provide greater 

awareness of Federal whistleblower protections, and for other purposes, having considered the same, reports favorably thereon with 

an amendment in the nature of a substitute and an amendment to 

the title 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 ......................................................................................... 11 

IV. Section-by-Section Analysis .......................................................................... 11 

V. Evaluation of Regulatory Impact .................................................................. 13 

VI. Congressional Budget Office Cost Estimate ................................................ 13 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 14 

I. PURPOSE AND SUMMARY

S. 2127, the Dr. Chris Kirkpatrick Whistleblower Protection Act 

of 2015, provides additional protections to Federal employees who 

are retaliated against for disclosing waste, fraud, or abuse in the 

Federal Government. Additionally, the bill directs the Department 

of Veterans Affairs (VA) to address agency-specific gaps in its protection of VA employees, including VA employees’ privacy interest 

in their medical records and their personal safety. 


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

(2015) (statement of Thomas M. Devine, Legal Director, Government Accountability Project) 

(‘‘This committee long has played a leadership role in enacting legislation to protect whistleblowers.’’), available at http://www.hsgac.senate.gov/hearings/blowing-the-whistle-on-retaliationaccounts-of-current-and-former-federal-agency-whistleblowers [hereinafter ‘‘Blowing the Whistle’’]. 

2Pub. L. No. 112–199 (112th Cong.) (2012). 

3 Id. 

4 Blowing the Whistle at 3 (statement of Thomas M. Devine, Legal Director, Government Accountability Project). 5 Examining the Administration’s Treatment of Whistleblowers: Hearing Before the Oversight 

& Gov. Reform Comm. 1, 113th Cong. (2014) (statement of Carolyn Lerner, Special Counsel, Office of Special Counsel), available at https://oversight.house.gov/hearing/examining-administrations-treatment-whistleblowers/. 6 Id. 

The legislation is named in honor of Dr. Chris Kirkpatrick, a 

whistleblower who questioned excessive prescription practices at 

the VA Medical Center in Tomah, Wisconsin (Tomah VAMC). Dr. 

Kirkpatrick took his own life after being fired from the Tomah 

VAMC. 

II. BACKGROUND AND THE NEED FOR LEGISLATION

This Committee has a history of working on a bipartisan basis 

to protect Federal whistleblowers that come forward to report 

waste, fraud and abuse, and seek the protections of the Whistleblower Protection Act. Frequently, this work has led to legislation 

to address gaps or weaknesses in current law.1 In 2012, for example, the Committee unanimously reported out, Congress passed, 

and President Obama signed, the Whistleblower Protection Enhancement Act of 2012 (WPEA).2 The WPEA bolstered whistleblower rights by broadening the scope of what constitutes a ‘‘disclosure’’ of waste, fraud, and abuse by civilian government employees 

to any relevant entity, including Congress.3

Despite the progress Congress and this Committee have made in 

the years since the Whistleblower Protection Act was first passed 

in 1989, whistleblowers too often face retaliation for disclosing 

waste, fraud and abuse. As the legal director for the Government 

Accountability Project put it in testimony before the Committee in 

June 2015: ‘‘retaliation for challenging abuses of power always has 

and always will occur. . . . Further, the imperative is permanent 

to make a negative example out of every whistleblower’s life, to 

scare others into silence.’’ 4

Accordingly, in the 114th Congress, this Committee has made it 

a priority to examine the root and contributing causes of whistleblower retaliation through investigations, hearings, and other oversight, and to identify ways in which gaps or weaknesses in current 

law can be addressed through legislation. In many ways, this bill 

is a product of that work. 

Increased cases alleging retaliation against whistleblowers 

Created in 1989, the Office of Special Counsel (OSC) ‘‘is an independent investigative and prosecutorial agency tasked with protecting the merit system and ensuring accountability and fairness 

for over 2.1 million civilian federal employees.’’ 5 As part of this responsibility, OSC investigates and prosecutes allegations of prohibited personnel practices by agencies related to whistleblowers.6 In 

July 2014, Special Counsel Carolyn Lerner stated that the number 


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7 VA Whistleblowers: Exposing Inadequate Service Provided to Veterans and Ensuring Appropriate Accountability: Hearing Before the House Comm. on Veterans’ Affairs, 113th Cong. (2014) 

(statement of Carolyn Lerner, Special Counsel, Office of Special Counsel), available at http://veterans.house.gov/hearing/va-whistleblowers-exposing-inadequate-service-provided-to-veteransand-ensuring-appropriate. 8 Id. 

9 Improving VA Accountability: Examining First-Hand Accounts of Department of Veterans Affairs Whistleblowers: Hearing Before the Comm. on Homeland Security & Governmental Affairs 

1, 114th Cong. (2015) (statement of Carolyn Lerner, Special Counsel, Office of Special Counsel), 

available at http://www.hsgac.senate.gov/hearings/improving-va-accountability-examining-firsthand-accounts-of-department-of-veterans-affairs-whistleblowers [hereinafter ‘‘Improving VA Accountability’’]. 10 Addressing Continued Whistleblower Retaliation Within VA: Hearing Before Comm. on Veterans’ Affairs, Subcomm. On Oversight & Investigations 1, 114th Cong. (2015) (statement of 

Carolyn Lerner, Special Counsel, Office of Special Counsel), available at http://veterans.house.gov/hearing/addressing-continued-whistleblower-retaliation-within-va [hereinafter 

‘‘Addressing Continued Whistleblower Retaliation Within VA’’]. 11 Improving VA Accountability at 2 (statement of Carolyn Lerner, Special Counsel, Office of 

Special Counsel). 12 Id. at 1. 13 Id. at 2. 14 Id. at 6–7; Addressing Continued Whistleblower Retaliation Within VA 7 (statement of Carolyn Lerner, Special Counsel, Office of Special Counsel). 15 Id. 16 Improving VA Accountability at 1 (opening statement of Senator Ron Johnson). 

of cases OSC receives each year has increased 51 percent over the 

last five years and ‘‘[m]ost of these complaints allege retaliation for 

whistleblowing or protected activity, such as cooperating with an 

OSC or Inspector General investigation.’’ 7

Retaliation against whistleblowers has been particularly concerning in recent years at the VA. Special Counsel Lerner has publicly questioned the VA’s handling of whistleblower complaints, 

stating that ‘‘it is clear that the workplace culture in many VA facilities is hostile to whistleblowers and actively discourages them 

from coming forward with what is often critical information.’’ 8 Indeed, OSC ‘‘has seen a sharp increase in the number of whistleblower cases from VA employees.’’ 9 VA cases averaged only 20 percent of all cases in 2009, 2010, and 2011.10 As of September 2015, 

the proportion of prohibited personnel practice complaints made to 

OSC by VA employees was approximately 35 percent of all the 

complaints received by OSC across the Federal Government.11 To 

put this number in context, 2014 was the first year on record that 

cases filed with OSC by VA employees surpassed those by Department of Defense (DoD) employees, despite the fact that the DoD 

has two times more civilian employees than the VA.12 The recent 

increase of whistleblower complaints coming from the VA has 

forced OSC to reallocate staff and resources and prioritize VA cases 

through an expedited review process.13

The most troubling sign of the VA’s treatment of whistleblowers 

comes from the way it has reacted to damaging information in 

some situations by first questioning the individual who made the 

disclosure.14 According to Special Counsel Lerner, there are two 

problems with this approach: the VA problems are glossed over, 

and the VA employees fear that ‘‘their own actions will come under 

intense scrutiny’’ if they speak up.15

In a September 2015 Committee hearing titled Improving VA Accountability: Examining First-Hand Accounts of Department of 

Veterans Affairs Whistleblowers, the Committee invited several VA 

whistleblowers to come in and tell their stories to ‘‘illustrate the 

wide variety of challenges and hardships whistleblowers face when 

they come forward to report wrongdoing.’’ 16 The hearing followed 


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17Tomah VAMC: Examining Quality, Access, and a Culture of Overreliance on High-Risk 

Medications: Joint Field Hearing Before the Comm. of Homeland Security & Governmental Affairs and the H. Comm. on Veterans’ Affairs, 114th Cong. (2015), available at http:// 

www.hsgac.senate.gov/hearings/joint-field-hearing-tomah-vamc-examining-quality-access-and-aculture-of-overreliance-on-high-risk-medications [hereinafter, Tomah VAMC Hearing]. 18 Improving VA Accountability at 1–2 (statement of Sean Kirkpatrick). 19Tragedy at Tomah: Initial Findings, an Interim Report of the Majority Staff of the Comm. 

on Homeland Security & Governmental Affairs, United States Senate 13–14 (June 25, 2015), 

available at https://www.hsgac.senate.gov/library?PageNumlrs=7 [hereinafter ‘‘Tomah Report’’]. 20 Id. at 14–17. 21 Id. at 15. 22 Id. 23 Id. at 20 (referring to the Juneau County Sheriffs Department CAD Operations Report at 

23, 34–39, and 41–44). 24 Improving VA Accountability at 2 (statement of Sean Kirkpatrick). 25 Id. 26Letter from Wayne Davis, Manager, Great Lakes Human Resources Management Service, 

to Chris Kirkpatrick (July 14, 2009) (on file with Comm.). 

a March 2015 Committee hearing revealing the tragic events at the 

Tomah VAMC, where two separate whistleblowers Dr. Noelle Johnson and Ryan Honl testified about how they blew the whistle on 

over-medication at the facility, and how their warnings were received by the VA with punishment, rather than reform.17

One of the individuals who testified at the September 2015 hearing was Sean Kirkpatrick on behalf of his deceased brother, Dr. 

Chris Kirkpatrick. Dr. Kirkpatrick was a clinical psychologist at 

the Tomah VAMC who came forward to his union representative 

about his concerns that the Tomah VAMC was overprescribing 

medication.18 A preliminary majority staff report issued on June 

25, 2015, found that in 2009—and perhaps as far back as 2004— 

employees at the Tomah VAMC ‘‘referred to the facility as ‘Candy 

Land’ and to one doctor in particular, Dr. David Houlihan, as the 

‘Candy Man.’ ’’ 19 Employees at the facility reported that patients 

used these terms because Dr. Houlihan prescribed large quantities 

of narcotics.20 So large, in fact, that some ‘‘Tomah VAMC providers 

and registered pharmacists refused to prescribe or fill large quantities of narcotic prescriptions’ ’’ for Dr. Houlihan’s patients.21 In 

the spring of 2009, the local union grew concerned about a possible 

connection between Dr. Houlihan’s proclivity to give out such large 

quantities of narcotics and the fact that several of his patients had 

‘‘unexplained deaths at this Medical Center.’’ 22

According to documents obtained by the Committee, around the 

same time of rising concerns with Dr. Houlihan’s prescribing methods, Dr. Kirkpatrick reported to his supervisors and his union representative that he believed some of his patients were overmedicated.23 At the Committee’s hearing on September 22, 2015, Dr. 

Kirkpatrick’s brother provided further information. He testified 

that Dr. Kirkpatrick also complained that he was ‘‘very afraid of 

Dr. Houlihan’’ and was facing an ‘‘ethical dilemma’’ because he had 

discussed with a physician assistant the fact that he had concerns 

about medication being prescribed, and that the physician assistant 

had accused him of inappropriate behavior.24 Sean Kirkpatrick testified that shortly thereafter, Dr. Kirkpatrick received a written 

counseling admonishing him for ‘‘ ‘educating’ patients about what 

medications they are on’’ and advising him to ‘‘focus on his own 

work.’’ 25 On July 14, 2009, the Tomah VAMC terminated Dr. Kirkpatrick for ‘‘performance issues.’’ 26 Tragically, Dr. Kirkpatrick took 


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27Tomah Report at 20. 28Letter from Sloan Gibson, Deputy Sec’y, U.S. Dep’t of Veterans Affairs, to Sen. Ron Johnson, Chairman, S. Comm. on Homeland Security & Governmental Affairs (May 29, 2015) (on 

file with Comm.). 29Tomah Report at 3–4. 30 Id. at 6–7. 31 Blowing the Whistle on Retaliation: Accounts of Current and Former Federal Agency Whistleblowers: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. 

(2015), available at http://www.hsgac.senate.gov/hearings/blowing-the-whistle-on-retaliation-accounts-of-current-and-former-federal-agency-whistleblowers [hereinafter ‘‘Blowing the Whistle on 

Retaliation’’]. 32 Id. 33Gov’t accountability Office, GAO–15–191, Federal Workforce: Improved Supervision and 

Better Use of Probationary Periods are Needed to Address Substandard Employee Performance 

10 (2015). 34 Id. 35 Id. at 11. 

his own life later that evening.27 The VA never investigated Dr. 

Kirkpatrick’s suicide.28

In his testimony before the Committee, Sean Kirkpatrick detailed the retaliation he believes his brother experienced in the 

wake of his questioning veteran care at the Tomah VAMC. Sean 

Kirkpatrick also explained the emotional stress that Dr. Kirkpatrick had been under at the facility due to ‘‘taking on so many 

cases’’ without additional help, receiving threats of violence from 

one of his patients, and feeling as if he had no outlet to discuss the 

emotional stresses of treating veterans with Post Traumatic Stress 

Disorder.29 Sean Kirkpatrick suggested nine recommendations for 

Congress to consider to reform the way that whistleblowers, and in 

particular, VA employees, are treated.30 Many of those recommendations are addressed in this legislation and discussed in 

further detail below. 

While retaliation at the VA has captured the public’s attention 

most recently, retaliation against whistleblowers is not confined to 

any one agency. To better understand these issues across the Federal Government, the Committee held a hearing in June 2015, titled Blowing the Whistle on Retaliation: Accounts of Current and 

Former Federal Agency Whistleblowers.31 Witnesses at the hearing 

were employees from the United States Army, Homeland Security 

Investigations, the Social Security Administration, and the United 

States Customs and Border Protection who testified that they made 

a disclosure and believed they experienced retaliation from the 

agencies in response, including loss of their job, suspension of pay, 

and termination proceedings against them.32

Probationary period employees 

Some Federal employees serving initial appointments or being 

promoted to management in the civil service are required to serve 

a period of probation, or temporary appointment, typically for one 

year.33 This time period allows the agency to evaluate the employee before the appointment becomes final.34 If the agency decides not to finalize the appointment, the individual has limited appeal rights and the agency does not have to go through the same 

formal procedures to terminate the employee as it would if the employee’s appointment was finalized, when dismissing an employee 

becomes ‘‘more difficult and time consuming.’’ 35

While probationary periods serve a very important function in 

the civil service, they have the potential to be used as a tool by 

managers to retaliate against whistleblowers, since during this 


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36 Examining the Administration’s Treatment of Whistleblowers: Hearing Before the H. Oversight & Gov’t Reform Committee, 4, 113th Cong. (2014) (statement of Carolyn Lerner, Special 

Counsel, Office of Special Counsel), https://oversight.house.gov/hearing/examining-administrations-treatment-whistleblowers/ [hereinafter Examining the Administration’s Treatment of Whistleblowers]. 37 Id. at 5. 38 Id. at 3. 39 5 C.F.R. § 5.4. 40 Examining the Administration’s Treatment of Whistleblowers at 7 (statement of Carolyn 

Lerner, Special Counsel, Office of Special Counsel). 41Merit Systems Protection Board, Office of Government Ethics, and Office of Special Counsel 

Reauthorization: Hearing Before the H. Oversight & Gov’t Reform Comm., 8, 114th Cong. (2015) 

(statement of Carolyn Lerner, Special Counsel, Office of Special Counsel), available at https:// 

oversight.house.gov/hearing/merit-systems-protection-board-office-of-government-ethics-and-office-of-special-counsel-reauthorization/. 42See 5 U.S.C. App. § 6(a)(1); 31 U.S.C. § 716. 43 Id. 

time an employee may feel less free to speak up about abuses. Accordingly, the Committee believes it is useful to have an independent review of claims of retaliation against employees serving 

in a probationary status to ensure such abuse is not occurring. 

Probationary period employees should feel safe to make a protected disclosure to their agency or OSC, despite the fact that they 

are just starting out in Federal service. One way to encourage employees to speak up is to ensure that, if they are retaliated against 

for a disclosure, they have the right to request, a transfer to another position while their investigation is underway and the agency 

should prioritize that request. Getting an employee out of their immediate management structure while their demotion, termination, 

or other personnel action is stayed can give the employee the time 

and peace of mind to fight the action. 

OSC access to information 

OSC has multiple tools it can use to obtain relief for Federal employees alleging they are being retaliated against for blowing the 

whistle: it can seek a stay from the MSPB to halt any proposed adverse personnel action; 36 it can engage in alternative dispute resolution with the agency on behalf of the employee to obtain a favorable settlement; 37 and it can file a complaint with the MSPB to 

ask that it order an agency to take corrective action.38

To provide an effective investigation into a Federal employee’s 

whistleblower claim, however, OSC needs access to information 

that is solely in the agency’s possession. Currently, agencies are directed to comply with requests for documents from OSC by regulation, not statute.39 In most cases, agencies comply. However, OSC 

has testified that it has had difficulty obtaining timely and complete documents from the VA,40 and that sometimes agencies deny 

information on the basis that it is privileged.41 The Committee 

agrees with OSC’s assessment that it would benefit from having a 

clear, direct statutory authority to obtain all agency information, 

including agency communication, relevant to its investigation. A 

similar authority already exists for inspectors general and the Government Accountability Office (GAO).42

While it is important for OSC to have authority to obtain documents from other agencies, it is also important that OSC knows 

what to ask for. In the case of a Federal employee who commits 

suicide, OSC may not have the information it needs to even know 

if it should investigate.43 In Dr. Kirkpatrick’s case, he had not filed 

a complaint with OSC about any disclosure he made to the agency, 


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44 Id. 45 Improving VA Accountability (statement of Sean Kirkpatrick). 46 Blowing the Whistle on Retaliation (statement of Thomas M. Devine, Legal Director, Government Accountability Project). 47Office of Personnel Mgmt., Federal Employee Viewpoint Survey Results, Governmentwide 

Management Report 28 (2016) available at http://www.fedview.opm.gov/2015FILES/ 

2015lFEVSlGwidelFinallReport.PDF. 48 Improving VA Accountability 5–6 (statement of Carolyn Lerner, Special Counsel, Office of 

Special Counsel). 49 Id. at 6. 50Pub. L. No. 113–146 (113th Cong.). 51Pub. L. No. 113–175 (113th Cong.). 52 Independent Assessment of the Health Care Delivery Systems and Management Processes 

of the Department of Veterans Affairs, Volume I: Integrated Report iii (2015), available at http:// 

www.va.gov/opa/choiceact/documents/assessments/IntegratedlReport.pdf. 

and therefore OSC did not know to inquire after his death about 

whether Dr. Kirkpatrick’s termination was in retaliation for blowing the whistle. OSC agrees that situations such as these may warrant its investigation, but OSC would need information from the 

agency to know: (1) that an employee of the agency committed suicide; (2) that prior to the death of the employee, the employee made 

a protected disclosure of information; and that (3) after the disclosure, the agency took a personnel action against the employee.44 In 

these situations, S. 2127 would require the agency to refer the case 

to OSC, and OSC to examine whether the personnel action was 

taken as retaliation for making a disclosure, and take any appropriate action in response. As Sean Kirkpatrick testified, his family 

could not understand why the VA did not investigate Dr. Kirkpatrick’s death; 45 this authority would ensure that OSC can continue to ensure disclosures are investigated and those who retaliate 

against Federal whistleblowers are held accountable even in the 

event of a suicide. 

Lack of accountability 

‘‘Every academic or government study has concluded that the primary motivating, or chilling factor for would-be whistleblowers is 

whether they can make a difference by bearing witness.’’ 46 Unfortunately, in 2015 only sixty-one percent of Federal employees that 

responded to an Office of Personnel Management survey seeking 

Federal employee viewpoints on a variety of topics reported that 

they believed they could blow the whistle on a potential violation 

of any law, rule, or regulation without facing reprisal.47

OSC has also raised concerns about the inconsistent use of discipline against those whose wrongdoing is exposed by whistleblowers at the VA. In testimony before this Committee, Special 

Counsel Lerner noted numerous examples of the VA failing to discipline officials found responsible for posing significant risks to 

public health and safety or engaging in other misconduct.48 Special 

Counsel Lerner added that this lack of discipline ‘‘stand[s] in stark 

contrast to disciplinary actions taken against VA whistleblowers 

. . . for minor indiscretions or for activity directly related to the 

employee’s whistleblowing.’’ 49

The Veterans Access, Choice and Accountability Act of 2014,50 as 

amended by the Department of Veterans Affairs Expiring Authorities Act of 2014,51 commissioned an ‘‘independent assessment of 12 

areas of VA’s health care delivery systems and management processes.’’ 52 The study found, in part, that the Veterans Health Administration (VHA) has been ‘‘plagued by many problems: growing 


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53 Id. at xii. 54 Id. at xvi. 55 Dave Philipps, Few People Lost Jobs with V.A. in Scandal, N.Y. Times, Apr. 22, 2015, 

http://www.nytimes.com/2015/04/23/us/few-people-lost-jobs-with-va-in-scandal.html. 56 5 U.S.C. § 2302(c). 57 Examining the Administration’s Treatment of Whistleblowers: Hearing Before the Oversight 

& Gov. Reform Comm. 7, 113th Cong. (2014) (statement of Carolyn Lerner, Special Counsel, Office of Special Counsel), available at https://oversight.house.gov/hearing/examining-administrations-treatment-whistleblowers/. 58 Id. 59Office of Special Counsel, Agencies that have completed the 2302(c) certification program 

(last visited Apr. 12, 2016), https://osc.gov/Resources/ 

Agencies%20that%20have%20completed%202302c%20certification%20program.pdf. 

bureaucracy, leadership and staffing challenges, and unsustainable 

trajectory of capital costs.’’ 53 In addition, the study found ‘‘a misalignment of accountability and authority exists within a broader 

VHA culture characterized by risk aversion and lack of trust.’’ 54

This ‘‘misalignment’’ was all the more visible in the aftermath of 

the VA manipulated-wait-time scandal. According to a report from 

the New York Times in April 2015, the VA has removed at most 

only three employees were terminated for manipulating the wait 

time lists, while others linger on paid administrative leave or were 

transferred to other locations.55

In addition to ensuring consistent discipline, it is crucial that employees know their rights and supervisors and managers have 

training on how to address protected disclosures and allegations of 

retaliation. Current law requires that agencies keep their workforce informed about the rights and remedies available to them to 

prevent prohibited personnel practices, including how to make a 

disclosure.56 To help agencies meet this obligation, OSC provides a 

certification program that walks the agency through simple steps 

such as placing informational posters at agency facilities, providing 

information to new hires, and training supervisors about prohibited 

personnel practices.57 The certification program is not statutorily 

required, but is mandated under the Administration’s National Action Plan on Open Government.58

To date, only 58 agencies or departments within agencies have 

completed the certification program, and 19 of them are Offices of 

Inspectors General.59 To ensure all agencies are providing this crucial information to their employees, S. 2127 sets a deadline for 

agencies to provide their employees with the required information, 

and also provides more detail on what type of information the 

agency needs to include when it informs its employees of their general whistleblower rights: (1) information regarding whistleblower 

protections available to new employees during the probationary period; (2) information about the role of OSC and the MSPB in protecting whistleblowers; and (3) information about how to make a 

lawful disclosure that must be kept classified in the interest of national security. Additionally, S. 2127 requires that information 

about employee’s whistleblower protections must be made publicly 

available through the agency’s own website, and on the agency’s internal online portal, if one exists. 

Other improvements needed at the VA 

The original Whistleblower Protection Act contained twelve prohibited personnel practices listed in statute that serve to protect 

Federal employees, including protection from hiring violations, disVerDate Sep 11 2014 06:58 Jun 01, 2016 Jkt 059010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR262.XXX SR262

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60Pub. L. No. 101–12 (101st Cong.) (1989). 61Pub. L. No. 112–199 (112th Cong.) (2012). 62 Blowing the Whistle on Retaliation (statement of Thomas M. Devine, Legal Director, Government Accountability Office). 63 Improving VA Accountability at 7 (statement of Carolyn Lerner, Special Counsel, Office of 

Special Counsel). 64Tomah VAMC Hearing at 2 (statement of Ryan Honl). 65See generally, Improving VA Accountability (statements of Brandon Coleman, Ph.D. and 

Shea Wilkes). 66 Comm. staff discussions with the Office of Special Counsel (Nov. 2015). 67 Id. 

crimination, and retaliation against whistleblowers.60 In the years 

since the law was passed, however, changes in agency action have 

required Congress to further protect employees by supplementing 

the list. Through WPEA, Congress added a thirteenth prohibited 

personnel practice: prohibiting agencies from imposing non-disclosure agreements on Federal employees that do not explicitly permit 

whistleblowing.61

Similarly, some agency employees are now skirting the law and 

retaliating against whistleblowers in other ‘‘creative’’ ways.62 One 

significant concern to this Committee is the abuse of accessing a 

whistleblower’s medical records. Last year, Special Counsel Lerner 

testified that ‘‘[i]n several cases, the medical records of whistleblowers have been accessed and information in those records has 

apparently been used to attempt to discredit the whistleblowers.’’ 63

At the Committee’s March 2015 field hearing in Tomah, Wisconsin, 

whistleblower and Army veteran Ryan Honl testified that Tomah 

VAMC employees accessed his medical records despite the fact that 

Mr. Honl had never received care at the Tomah VAMC.64 In addition, Brandon Coleman and Shea Wilkes, both veteran VA employees, testified at the Committee’s September 2015 hearing that their 

medical records were improperly accessed by VA officials after they 

began raising concerns about patient care at the VA facilities 

where they worked.65

The VA may lack proper technological safeguards to ensure that 

employees’ medical records are shielded from the view of other employees. According to OSC, non-medical personnel within the VA 

have at times accessed the medical files of their veteran coworkers.66 In discussions with OSC staff, OSC has reported that in 

some instances, VA employees have claimed that they accessed another employee’s medical record simply to obtain their address for 

a valid work-related reason.67 There does not seem to be a valid 

reason for a VA employee to access the medical records of another 

employee unless they are treating the individual. It is the Committee’s view that in all other circumstances, if the VA employee is in 

need of personal information, such as an address, he or she should 

obtain that information through the agency’s personnel records system. 

In addition to improper access of medical records, the Committee 

has heard testimony of other employee concerns at the VA, including employee mental health and safety. As stated above, Dr. Chris 

Kirkpatrick was a clinical psychologist at the Tomah VAMC. Dr. 

Kirkpatrick’s brother provided to the Committee information about 

Dr. Kirkpatrick’s work at Tomah VAMC. According to Dr. Kirkpatrick’s brother, Sean, in his job, Dr. Kirkpatrick treated veterans 

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68 Improving VA Accountability (statement of Sean Kirkpatrick). 69 Id. 70 Id. 71 Id. 72Letter from Ron Johnson, Chairman S. Comm. on Homeland Security and Governmental 

Affairs, to Robert McDonald, Secretary, Dep’t. of Veterans Affairs, Apr. 20, 2015. 73Letter from Sloan D. Gibson, Deputy Secretary, Dep’t of Veterans Affairs, to Ron Johnson, 

Chairman, S. Comm. on Homeland Security and Governmental Affairs, May 29, 2015. 74 Id. 75 Improving VA Accountability (statement of Sean Kirkpatrick). 

order (ASD).68 These veterans would recount their horrific experiences on the battlefield to Dr. Kirkpatrick and he would devise 

treatment methods to assist those veterans in their recovery.69

Sean Kirkpatrick testified that Dr. Kirkpatrick sometimes felt 

overwhelmed by his caseload and the stories he heard and believed 

that there should be some sort of support structure in place for VA 

professionals to seek mental health services of their own.70 This 

bill would require the VA to conduct outreach to its employees to 

make them more aware of any mental health services, including 

telemedicine options, that are available to them. 

Sean Kirkpatrick also testified that a veteran had threatened Dr. 

Kirkpatrick at the Tomah VAMC. According to Sean Kirkpatrick’s 

testimony, Dr. Kirkpatrick reached out to his union stating that he 

was concerned for his safety after this veteran threatened to commit bodily harm to Dr. Kirkpatrick and his dog.71 In an April 20, 

2015 letter, Chairman Johnson inquired about VA protocols for 

handling threats from patients to staff and what actions, if any, 

were taken regarding any patient that may have threatened Dr. 

Kirkpatrick.72 In response, the VA stated to Chairman Johnson 

that the VA Police Service addresses patient threats and that the 

Tomah VAMC has a ‘‘Flags Committee to consider risk factors and 

recommendations on flagging patients consistent with VHA Directive 2010–053, Patient Record Flags.’’ 73 Specifically regarding the 

alleged threat against Dr. Kirkpatrick, the VA stated that Tomah 

VAMC was ‘‘not aware of an investigation into threats being made 

against Dr. Kirkpatrick by a patient. A review of Dr. Kirkpatrick’s 

records identified one Veteran as possibly being the Veteran who 

may have threatened Dr. Kirkpatrick. However the Tomah VAMC 

is not aware of any action taken against this patient regarding 

threats against Dr. Kirkpatrick.’’ 74 This bill would require the VA 

to ensure protocols are in place to address threats from VA patients against VA employees. 

The Committee’s investigation of the Tomah VAMC has discovered other areas for improvement within the VA. In particular, the 

investigation has identified potential problems with the reporting 

structure of the VA Police Department of the Tomah VAMC. Sean 

Kirkpatrick testified that the reporting structure of the Tomah VA 

Police Department may have led to potential conflicts of interest 

with hospital leadership and possibly inhibited the Tomah VA Police Department’s law enforcement functions at the facility.75 There 

is potential that the chain of command structure for police departments at other VA facilities poses similar concerns about conflicts 

of interest with facility management. Accordingly, S. 2127 would 

require that GAO study the reporting, staffing, accountability, and 

chain of command structure of the VA police officers at their own 

medical centers. 


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S. 2127 is a culmination of the work this Committee has done to 

examine the gaps and weaknesses in current whistleblower protection laws. The bill addresses a wide array of the most pressing 

problems at the VA and across the Federal Government relating to 

retaliation against whistleblowers, and directs the VA to put in 

place plans to limit its employees’ unauthorized access to medical 

records. 

III. LEGISLATIVE HISTORY

Chairman Ron Johnson (R–WI) introduced S. 2127, the Dr. Chris 

Kirkpatrick Whistleblower Protection Act of 2015, on October 1, 

2015 with Senator Kelly Ayotte (R–NH). The bill was referred to 

the Committee on Homeland Security and Governmental Affairs. 

Senator Mark Kirk (R–IL) and Senator Joni Ernst (R–IA) joined as 

cosponsors on October 22, 2015 and December 9, 2015, respectively. 

The Committee considered S. 2127 at a business meeting on December 9, 2015. During the business meeting, a substitute amendment and an amendment to change the title of the bill were offered 

by Chairman Johnson and accepted by unanimous consent. The 

bill, as amended, was ordered reported favorably by a roll call vote 

of 9 yeas to 0 nays. Senators Johnson, Portman, Lankford, Ayotte, 

Ernst, Carper, Tester, Baldwin, and Booker voted in the affirmative. Senators McCain, Paul, Enzi, Sasse, McCaskill, Heitkamp, 

and Peters were recorded for the record only as voting yea by 

proxy. 

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

TITLE I—EMPLOYEES GENERALLY

Section 101. Definitions 

This section includes definitions of the term ‘‘executive agency’’ 

and ‘‘executive branch employee.’’ 

Sec. 102. Stays; probationary employees 

Subsections (a) and (b) ensure that if MSPB grants a stay to an 

employee under Section 1214 or 1221 of title 5, United States Code, 

the employee can request from their employing agency a transfer, 

and that request shall receive priority. Subsection (c) requires GAO 

to study Federal agency retaliation against probationary period employees. 

Sec. 103. Adequate access of Special Counsel to information 

This section authorizes OSC to have access to all documents or 

other materials from an applicable agency that relate to its authority, and to request such information or assistance from an agency 

as may be necessary to carry out its statutory responsibilities. 

Sec. 104. Prohibited personnel practices 

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


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Sec. 105. Discipline of supervisors based on retaliation against 

whistleblowers 

This section requires the head of each agency to propose prescribed adverse actions against supervisory employees who the 

head of the agency, an administrative judge, the Merit Systems 

Protection Board, the OSC, an adjudicating body provided under a 

union contract, a Federal judge, or the inspector general has determined has committed a prohibited personnel action against a whistleblower or accessed a medical record in retaliation for the employee engaging in a protected activity as described in Section 

2302(b)(8), (9), and the new (14) of title 5, United States Code. The 

adverse actions that shall be proposed are: for the first offense, not 

less than a 12-day suspension; and for a second offense, removal. 

Employees against whom these adverse actions are proposed would 

have notice and opportunity to respond and retain due process 

rights to appeal the decision to the Merit System Protections 

Board. 

Sec. 106. Suicide by employees 

Subsections (a) and (b) ensure that OSC has the information it 

needs to investigate prohibited personnel practices if an employee 

commits suicide. Currently, OSC would know if a deceased Federal 

employee had filed a complaint with OSC, but not necessarily if 

they had made disclosures to the agency. These provisions require 

the agency to share information with the OSC about a Federal employee who committed suicide if that employee had, prior to his or 

her death, (1) made any protected disclosure, and (2) had a personnel action taken against him or her by the agency. In such circumstances, OSC is required to examine whether the personnel action was taken because of the disclosure and take appropriate action. 

Sec. 107. Training for supervisors 

This section requires agencies to provide supervisors training on 

responding to complaints alleging a violation of whistleblower protections available to agency employees. 

Sec. 108. Information on whistleblower protections 

This section requires agencies to keep their employees apprised 

of the rights and remedies available to them if the agency commits 

a prohibited personnel practice, including requiring agencies to 

post such information on their public and internal websites. 

TITLE II—DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES

Sec. 201. Protecting medical privacy of employees of the Department 

of Veterans Affairs 

This section requires the VA to formulate a plan for protecting 

employees from having their medical records accessed without authorization. The plan must include how the agency will use technology to block computer access to records for those employees who 

have no need to access such information, and how it will stop VA 

employees from accessing medical files for demographic information 

where another non-medical database is available. The VA must 

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mental Affairs Committee, the House Oversight and Government 

Reform Committee and the veterans’ affairs congressional committees in both the United States Senate and House of Representatives within 180 days of the bill becoming law, and provide a briefing if requested. 

Sec. 202. Mental health services for employees of the Department of 

Veterans Affairs 

This section requires the VA to conduct outreach to its employees 

to make them more aware of any mental health services, including 

telemedicine options, that are available to them. 

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

This section requires the VA to ensure protocols are in place to 

address threats from VA patients against VA employees who are 

providing care. 

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

medical centers 

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

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 17, 2016. 

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. 2127, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2015. 

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

to provide them. The CBO staff contact is Dwayne M. Wright. 

Sincerely, 

KEITH HALL. 

Enclosure. 

S. 2127—Dr. Chris Kirkpatrick Whistleblower Protection Act of 

2015 

S. 2127 would modify several personnel and administrative procedures at federal agencies—some of which would be specific to the 


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Department of Veterans Affairs (VA)—and would require two reports. CBO estimates that implementing S. 2127 would cost $3 million over the 2017–2021 period; that spending would be subject to 

the availability of appropriated funds. Enacting S. 2127 would not 

affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. 

S. 2127 would require the Government Accountability Office 

(GAO) to prepare two reports: one discussing retaliation against 

employees on probationary status and the other assessing management and staffing levels of police officers at VA medical centers. On 

the basis of costs for similar reports, CBO estimates that completing those reports would cost $2 million over the 2017–2021 period. 

Additionally, S. 2127 contains several provisions that would modify personnel and administrative procedures at VA and other federal agencies. On the basis of information from VA and the Office 

of Special Counsel, CBO expects that each provision would have an 

insignificant budgetary effect because they would either largely 

codify current practice or affect few people. On that basis, CBO estimates that implementing the following requirements, in total, 

would cost $1 million over the 2017–2021 period. Those provisions 

would: • Add protections for probationary employees; • Improve the ability of the Office of Special Counsel to access certain types of information; • Limit access to medical records of employees and create a 

plan to prevent unauthorized access of medical records by VA 

employees; • Prescribe disciplinary actions to be taken against supervisors who retaliate against employees identified as whistleblowers; • Require training for supervisors on protections for whistleblowers; • Provide information to employees and the public about 

whistleblower protections; • Increase outreach to employees about mental health services at VA; and • Ensure protocols are in place to address threats to VA employees by patients of VA medical centers. 

CBO estimates that enacting S. 2127 would not increase net direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2027. 

S. 2127 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Dwayne M. Wright. 

The estimate was approved by H. Samuel Papenfuss, Deputy Assistant Director for Budget Analysis. 

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): 


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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) The Special Counsel, in carrying out this subchapter, is 

authorized to— 

(A) have access to all records, reports, audits, reviews, 

documents, papers, recommendations, or other material 

available to the applicable agency which relate to a matter 

within the jurisdiction or authority of the Special Counsel; 

and 

(B) request from any agency such information or assistance as may be necessary for carrying out the duties and 

responsibilities of the Special Counsel under this subchapter. 

* * * * * * * 

SEC. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; 

CORRECTIVE ACTION 

(a) * * * 

(b) * * * 

(1) * * * 

(A) * * * 

* * * * * * * 

(E) If the Merit Systems Protections Board grants a stay 

under this subsection, the head of the agency employing the 

employee shall give priority to a request for a transfer submitted by the employee. 

* * * * * * * 


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Subchapter III—Individual Right of Action in Certain 

Reprisal Cases 

* * * * * * * 

SEC. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL 

CASES 

(a) * * * 

* * * * * * * 

(k) If the Merit Systems Protection Board grants a stay to an employee in probationary status under subsection (c), the head of the 

agency employing the employee shall give priority to a request for 

a transfer submitted by the employee. 

* * * * * * * 

PART III—EMPLOYEES 

* * * * * * * 

Subpart A—General Provisions 

* * * * * * * 

CHAPTER 23—MERIT SYSTEM PRINCIPLES 

* * * * * * * 

Table of sections 

Sec. 

2301. Merit systems principles. 

2302. Prohibited personnel practices. 

2303. Prohibited personnel practices in the Federal Bureau of Investigation. 

2304. Prohibited personnel practices affecting the Transportation Security Administration. 

2305. Responsibilities of the Government Accountability Office. 

2306. Coordination with certain other provisions of law. 

2307. Information on whistleblower protections. 

* * * * * * * 

SEC. 2302. PROHIBITED PERSONNEL PRACTICES 

(a) * * * 

(b) * * * 

(1) * * * 

* * * * * * * 

(12) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or 

regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title; øor¿ 

(13) implement or enforce any nondisclosure policy, form, or 

agreement, if such policy, form, or agreement does not contain 

the following statement: ‘‘These provisions are consistent with 

and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) 

communications to Congress, (3) the reporting to an Inspector 

General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or 

a substantial and specific danger to public health or safety, or 

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ments, obligations, rights, sanctions, and liabilities created by 

controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’’ø.¿ or 

(14) access the medical record of another employee for the purpose 

of retaliation for a disclosure or activity protected under paragraph 

(8) or (9). 

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.¿ 

ø(d)¿ (c) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee 

or applicant for employment in the civil service under— 

(1) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 

2000e–16), prohibiting discrimination on the basis of race, 

color, religion, sex, or national origin; 

(2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age; 

(3) under section 6(d) of the Fair Labor Standards Act of 

1938 (29 U.S.C. 206(d)), prohibiting discrimination on the basis 

of sex; 

(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 

791), prohibiting discrimination on the basis of handicapping 

condition; or 

(5) the provisions of any law, rule, or regulation prohibiting 

discrimination on the basis of marital status or political affiliation. 

ø(e)¿ (d) 

(1) For the purpose of this section, the term ‘‘veterans’’ preference requirement’’ means any of the following provisions of 

law: 

(A) Sections 2108, 3305(b), 3309, 3310, 3311, 3312, 3313, 

3314, 3315, 3316, 3317(b), 3318, 3320, 3351, 3352, 3363, 

3501, 3502(b), 3504, and 4303(e) and (with respect to a 

preference eligible referred to in section 7511(a)(1)(B)) subchapter II of chapter 75 and section 7701. 

(B) Sections 943(c)(2) and 1784(c) of title 10. 

(C) Section 1308(b) of the Alaska National Interest 

Lands Conservation Act. 

(D) Section 301(c) of the Foreign Service Act of 1980. 

(E) Sections 106(f), 7281(e), and 7802(5) of title 38. 

(F) Section 1005(a) of title 39. 


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(G) Any other provision of law that the Director of the 

Office of Personnel Management designates in regulations 

as being a veterans’ preference requirement for the purposes of this subsection. 

(H) Any regulation prescribed under subsection (b) or (c) 

of section 1302 and any other regulation that implements 

a provision of law referred to in any of the preceding subparagraphs. 

(2) Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection (b)(11). Nothing in this paragraph shall be considered 

to affect any authority under section 1215 (relating to disciplinary action). 

ø(f)¿ (e) 

(1) A disclosure shall not be excluded from subsection (b)(8) 

because— 

(A) the disclosure was made to a supervisor or to a person who participated in an activity that the employee or 

applicant reasonably believed to be covered by subsection 

(b)(8)(A)(i) and (ii); 

(B) the disclosure revealed information that had been 

previously disclosed; 

(C) of the employee’s or applicant’s motive for making 

the disclosure; 

(D) the disclosure was not made in writing; 

(E) the disclosure was made while the employee was off 

duty; or 

(F) of the amount of time which has passed since the occurrence of the events described in the disclosure. 

(2) If a disclosure is made during the normal course of duties 

of an employee, the disclosure shall not be excluded from subsection (b)(8) if any employee who has authority to take, direct 

others to take, recommend, or approve any personnel action 

with respect to the employee making the disclosure, took, 

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

action with respect to that employee in reprisal for the disclosure. 

* * * * * * * 

SEC. 2307. INFORMATION ON WHISTLEBLOWER PROTECTIONS 

(a) DEFINITIONS.—In this section— 

(1) the term ‘agency’ has the meaning given that term in section 2302; 

(2) the term ‘new employee’ means an individual— 

(A) appointed to a position as an employee of an agency 

on or after the date of enactment of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2015; and 

(B) who has not previously served as an employee; and 

(3) the term ‘whistleblower protections’ means the protections 

against and remedies for a prohibited personnel practice described in paragraph (8), subparagraph (A)(i), (B), (C), or (D) 

of paragraph (9), or paragraph (14) of section 2302(b). 

(b) RESPONSIBILITIES OF HEAD OF AGENCY.—The head of each 

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sonnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of 

personnel management, and for ensuring (in consultation with the 

Special Counsel and the Inspector General of the agency) that employees of the agency are informed of the rights and remedies available to them under this chapter and chapter 12, including— 

(1) information regarding whistleblower protections available 

to new employees during the probationary period; 

(2) the role of the Office of Special Counsel and the Merit Systems Protection Board with regard to whistleblower protections; 

and 

(3) how to make a lawful disclosure of information that is 

specifically required by law or Executive order to be kept classified in the interest of national defense or the conduct of foreign 

affairs to the Special Counsel, the Inspector General of an agency, Congress, or other agency employee designated to receive 

such disclosures. 

(c) TIMING.—The head of each agency shall ensure that the information required to be provided under subsection (b) is provided to 

each new employee of the agency not later than 6 months after the 

date the new employee is appointed. 

(d) INFORMATION ONLINE.—The head of each agency shall make 

available information regarding whistleblower protections applicable to employees of the agency on the public website of the agency, 

and on any online portal that is made available only to employees 

of the agency if one exists. 

(e) DELEGEES.—Any employee to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall, within the limits of the scope of the delegation, be responsible for the activities described in subsection (b). 

SUBPART C—Employee Performance 

* * * * * * * 

CHAPTER 45—INCENTIVE AWARDS 

* * * * * * * 

Subchapter I—Awards for Superior Accomplishments 

* * * * * * * 

SEC. 4505a. PERFORMANCE–BASED CASH AWARDS 

(a) * * * 

(b) * * * 

(1) * * * 

(2) The failure to pay a cash award under this section, or the 

amount of such an award, may not be appealed. The preceding sentence shall not be construed to extinguish or lessen any right or 

remedy under subchapter II of chapter 12, chapter 71, or any of the 

laws referred to in section ø2302(d)¿ section 2302(c). 

* * * * * * * 

Subpart D—Pay and Allowances 

* * * * * * * 


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CHAPTER 57—TRAVEL, TRANSPORTATION, AND 

SUBSISTENCE 

* * * * * * * 

Subchapter IV—Miscellaneous Provisions 

* * * * * * * 

SEC. 5755. SUPERVISORY DIFFERENTIALS 

(a) * * * 

(b) * * * 

(1) * * * 

(2) A supervisory differential may not be considered to be 

part of the basic pay of an employee, and the reduction or 

elimination of a supervisory differential may not be appealed. 

The preceding sentence shall not be construed to extinguish or 

lessen any right or remedy under subchapter II of chapter 12 

or under any of the laws referred to in section ø2302(d)¿ section 2302(c). 

* * * * * * * 

Subpart F—Labor-Management and Employee Relations 

* * * * * * * 

CHAPTER 75 ADVERSE ACTIONS 

* * * * * * * 

SEC. 7515. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION 

AGAINST WHISTLEBLOWERS 

(a) DEFINITIONS.—In this section— 

(1) the term ‘agency’ has the meaning given that term under 

section 2302; 

(2) the term ‘prohibited personnel action’ means taking or 

failing to take an action in violation of paragraph (8), (9), or 

(14) of section 2302(b) against an employee of an agency; and 

(3) the term ‘supervisor’ means a supervisor, as defined under 

section 7103(a), who is employed by an agency, as defined 

under paragraph (1) of this subsection. 

(b) PROPOSED ADVERSE ACTIONS.— 

(1) IN GENERAL.—In accordance with paragraph (2), the head 

of an agency shall propose against a supervisor whom the head 

of that agency, an administrative law judge, the Merit Systems 

Protection Board, the Office of Special Counsel, an adjudicating 

body provided under a union contract, a Federal judge, or the 

Inspector General of the agency determines committed a prohibited personnel action the following adverse actions: 

(A) With respect to the first prohibited personnel action, 

an adverse action that is not less than a 12-day suspension. 

(B) With respect to the second prohibited personnel action, removal. 

(2) PROCEDURES.— 

(A) NOTICE.—A supervisor against whom an adverse action under paragraph (1) is proposed is entitled to written 

notice. 

(B) ANSWER AND EVIDENCE.— 


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(i) IN GENERAL.—A supervisor who is notified under 

subparagraph (A) that the supervisor is the subject of 

a proposed adverse action under paragraph (1) is entitled to 14 days following such notification to answer 

and furnish evidence in support of the answer. 

(ii) NO EVIDENCE.—After the end of the 14-day period 

described in clause (i), if a supervisor does not furnish 

evidence as described in clause (i) or if the head of the 

agency determines that such evidence is not sufficient 

to reverse the proposed adverse action, the head of the 

agency shall carry out the adverse action. 

(C) SCOPE OF PROCEDURES.—Paragraphs (1) and (2) of 

subsection (b) of section 7513, subsection (c) of such section, 

paragraphs (1) and (2) of subsection (b) of section 7543, 

and subsection (c) of such section shall not apply with respect to an adverse action carried out under this subsection. 

(c) Limitation on Other Adverse Actions.—With respect to a prohibited personnel action, if the head of the agency carries out an adverse action against a supervisor under another provision of law, 

the head of the agency may carry out an additional adverse action 

under this section based on the same prohibited personnel action. 

WHISTLEBLOWER PROTECTION 

ENHANCEMENT ACT OF 2012 

* * * * * * * 

SEC. 110. DISCLOSURE OF CENSORSHIP RELATED TO RESEARCH, 

ANALYSIS, OR TECHNICAL INFORMATION. 

(a) * * * 

(b) PROTECTED DISCLOSURE.— 

(1) * * * 

(2) DISCLOSURES NOT EXCLUDED.—A disclosure shall not be 

excluded from paragraph (1) for any reason described under 

øsection 2302(f)(1) or (2)¿ section 2303(e)(1) or (2) of title 5, 

United States Code. 

* * * * * * * 

HOMELAND SECURITY ACT OF 2002 

* * * * * * * 

SEC. 704. CHIEF HUMAN CAPITAL OFFICER 

The Chief Human Capital Officer shall report to the Secretary, 

or to another official of the Department, as the Secretary may direct and shall ensure that all employees of the Department are informed of their rights and remedies under chapters 12 and 23 of 

title 5 by 

(1) participating in the ø2302(c)¿ 2307 Certification Program of 

the Office of Special Counsel; 

(2) achieving certification from the Office of Special Counsel of 

the Department’s compliance with section ø2302(c)¿ 2307 of title 5; 

and 


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(3) informing Congress of such certification not later than 24 

months after November 25, 2002. 

* * * * * * * 

PANAMA CANAL ACT OF 1979 

* * * * * * * 

SEC. 1217. RECRUITMENT AND RETENTION REMUNERATION 

(a) * * * 

(b) * * * 

(c) * * * 

(d) * * * 

(1) * * * 

(2) * * * 

(3) A decision by the Commission to exercise or to not exercise the authority to pay a bonus under this subsection shall 

not be subject to review under any statutory procedure or any 

agency or negotiated grievance procedure except under any of 

the laws referred to in øsection 2302(d)¿ section 2303(c) of title 

5. 

* * * * * * * 

SEC. 1233. TRANSITION SEPARATION INCENTIVE PAYMENTS 

(a) * * * 

(b) A decision by the Commission to exercise or to not exercise 

the authority to pay a transition separation incentive under this 

section shall not be subject to review under any statutory procedure or any agency or negotiated grievance procedure except under 

any of the laws referred to in øsection 2302(d)¿ section 2302(d) of 

title 5. 

* * * * * * * 

Æ 


smartinez on DSK3GLQ082PROD with REPORTS-SEN