II 

114TH CONGRESS 

1ST SESSION 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. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 1, 2015 

Mr. JOHNSON (for himself and Ms. AYOTTE) introduced the following bill; 

which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Dr. Chris Kirkpatrick Whistleblower Protection Act of 

6 2015’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—EMPLOYEES GENERALLY 

Sec. 101. Definitions. 

Sec. 102. Whistleblower protections for probationary employees. 

Sec. 103. Adequate access of Special Counsel to information. 

Sec. 104. Removal or demotion of employees based on retaliation against whistleblowers. 

Sec. 105. Suicide by executive branch employees. 

Sec. 106. Access to medical files. 

Sec. 107. Training for supervisors. 

Sec. 108. Information on whistleblower protections. 

TITLE II—DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES 

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

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

Affairs. 

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

Veterans Affairs. 

Sec. 204. Comptroller General of the United States study on accountability of 

chiefs of police of Department of Veterans Affairs medical centers. 

3 TITLE I—EMPLOYEES 

4 GENERALLY 

5 SEC. 101. DEFINITIONS. 

6 In this title— 

7 (1) the term ‘‘Executive agency’’ has the mean8 ing given that term under section 105 of title 5, 

9 United States Code; and 

10 (2) the term ‘‘executive branch employee’’ 

11 means an employee of an Executive agency. 


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1 SEC. 102. WHISTLEBLOWER PROTECTIONS FOR PROBA2 TIONARY EMPLOYEES. 

3 (a) IN GENERAL.—Section 1214 of title 5, United 

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘(i)(1) In this subsection, the term ‘covered proba7 tionary employee’ means an individual who— 

8 ‘‘(A) is an employee in probationary status; and 

9 ‘‘(B) has submitted to the Special Counsel an 

10 allegation of a prohibited personnel practice de11 scribed in paragraph (8) or subparagraph (A)(i), 

12 (B), (C), or (D) of paragraph (9) of section 2302(b) 

13 with respect to the individual. 

14 ‘‘(2) Not later than 10 days after the date on which 

15 an agency terminates a covered probationary employee, 

16 the Special Counsel shall determine whether a substantial 

17 likelihood exists that— 

18 ‘‘(A) the agency engaged in the prohibited per19 sonnel practice alleged by the covered probationary 

20 employee, as described in paragraph (1)(B); and 

21 ‘‘(B) the termination of the covered proba22 tionary employee was related to that prohibited per23 sonnel practice. 

24 ‘‘(3)(A) If the Special Counsel determines there is a 

25 substantial likelihood the circumstances described in para26 graph (2) exist, the Special Counsel shall request and the 


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1 Merit Systems Protection Board, without further pro2 ceedings, shall order a stay of the termination for 60 days 

3 for the Special Counsel to complete an investigation of the 

4 termination of the covered probationary employee. 

5 ‘‘(B) If, before the end of the 60-day period described 

6 in subparagraph (A), the Special Counsel determines that 

7 additional investigation is warranted, the Special Counsel 

8 shall request and the Merit Systems Protection Board, 

9 without further proceedings, shall order a stay of the ter10 mination for such period as the Special Counsel deter11 mines appropriate, which may not exceed an additional pe12 riod of 6 months. 

13 ‘‘(4)(A) If the Special Counsel determines that the 

14 agency employing a covered probationary employee en15 gaged in the prohibited personnel practice alleged by the 

16 covered probationary employee, as described in paragraph 

17 (1)(B), and the termination of the covered probationary 

18 employee was related to that prohibited personnel practice, 

19 the Special Counsel shall request and the Merit Systems 

20 Protection Board, without further proceedings, shall order 

21 the reinstatement of the covered probationary employee. 

22 ‘‘(B) If the Special Counsel determines that the agen23 cy employing a covered probationary employee did not en24 gage in the prohibited personnel practice alleged by the 

25 covered probationary employee, described in paragraph 


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1 (1)(B), or that the termination of the covered proba2 tionary employee was not related to that prohibited per3 sonnel practice, the Special Counsel shall request and the 

4 Merit Systems Protection Board, without further pro5 ceedings, shall order the immediate enforcement of the 

6 termination. 

7 ‘‘(C) An order reinstating a covered probationary em8 ployee may be appealed by the agency to the Merit Sys9 tems Protection Board under section 7701. 

10 ‘‘(5) If a stay is granted to a covered probationary 

11 employee under paragraph (3) or a covered probationary 

12 employee is reinstated under this subsection, the head of 

13 the agency employing the covered probationary employee 

14 shall give priority to a request for a transfer submitted 

15 by the covered probationary employee.’’. 

16 (b) INDIVIDUAL RIGHT OF ACTION.—Section 1221 of 

17 title 5, United States Code, is amended by adding at the 

18 end the following: 

19 ‘‘(k)(1) In this subsection, the term ‘covered proba20 tionary employee’ has the meaning given that term under 

21 section 1214(i)(1). 

22 ‘‘(2) In this section, the term ‘employee’ includes a 

23 covered probationary employee who is terminated, includ24 ing for purposes of seeking a stay under subsection (c). 


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1 ‘‘(3) If the Merit Systems Protection Board grants 

2 a stay to a covered probationary employee under sub3 section (c), the head of the agency employing the covered 

4 probationary employee shall give priority to a request for 

5 a transfer submitted by the covered probationary em6 ployee.’’. 

7 (c) STUDY REGARDING RETALIATION AGAINST PRO8 BATIONARY EMPLOYEES.—The Comptroller General of 

9 the United States shall submit to the Committee on 

10 Homeland Security and Governmental Affairs of the Sen11 ate and the Committee on Oversight and Government Re12 form of the House of Representatives a report discussing 

13 retaliation against employees in probationary status relat14 ing to a disclosure by the employees of information de15 scribed in section 2302(b)(8) of title 5, United States 

16 Code, by the employees. 

17 SEC. 103. ADEQUATE ACCESS OF SPECIAL COUNSEL TO IN18 FORMATION. 

19 Section 1212(b) of title 5, United States Code, is 

20 amended by adding at the end the following: 

21 ‘‘(5)(A) The Special Counsel, in carrying out this 

22 subchapter, is authorized to— 

23 ‘‘(i) have access to all records, reports, audits, 

24 reviews, documents, papers, recommendations, or 

25 other material available to the applicable agency 


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1 which relate to a matter within the jurisdiction or 

2 authority of the Special Counsel; and 

3 ‘‘(ii) request from any agency such information 

4 or assistance as may be necessary for carrying out 

5 the duties and responsibilities of the Special Counsel 

6 under this subchapter. 

7 ‘‘(B) Upon request of the Special Counsel for infor8 mation or assistance under subparagraph (A)(ii), the head 

9 of the agency involved shall, insofar as is practicable and 

10 not in contravention of any existing statutory restriction 

11 or regulation of the agency from which the information 

12 or assistance is requested, furnish to the Special Counsel 

13 such information or assistance.’’. 

14 SEC. 104. REMOVAL OR DEMOTION OF EMPLOYEES BASED 

15 ON RETALIATION AGAINST WHISTLE16 BLOWERS. 

17 (a) IN GENERAL.—Subchapter II of chapter 75 of 

18 title 5, United States Code, is amended by adding at the 

19 end the following: 

20 ‘‘§ 7515. Removal or demotion of employees based on 

21 retaliation against whistleblowers 

22 ‘‘(a) DEFINITION.—In this section, the term ‘retalia23 tion against a whistleblower’ means a prohibited personnel 

24 practice described in paragraph (8) or subparagraph 


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1 (A)(i), (B), (C), or (D) of paragraph (9) of section 

2 2302(b). 

3 ‘‘(b) REMOVAL OR DEMOTION.— 

4 ‘‘(1) IN GENERAL.—The head of an agency may 

5 remove or demote an employee of the agency if the 

6 head of the agency determines that the employee re7 taliated against a whistleblower. 

8 ‘‘(2) IMPOSITION OF ACTION.—If the head of 

9 an agency removes or demotes an employee under 

10 this section, the head of the agency may— 

11 ‘‘(A) remove the employee from the civil 

12 service; or 

13 ‘‘(B) demote the employee by means of— 

14 ‘‘(i) a reduction in grade for which the 

15 employee is qualified and that the head of 

16 the agency determines is appropriate; or 

17 ‘‘(ii) a reduction in annual rate of pay 

18 that the head of the agency determines is 

19 appropriate. 

20 ‘‘(c) PAY OF CERTAIN DEMOTED EMPLOYEES.— 

21 ‘‘(1) IN GENERAL.—Notwithstanding any other 

22 provision of law, any employee subject to a demotion 

23 under subsection (b)(2)(B)(i) shall, beginning on the 

24 date of the demotion, receive the annual rate of pay 

25 applicable to the applicable grade. 


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1 ‘‘(2) APPEAL.—An employee demoted under 

2 subsection (b)(2)(B)(i) may not be placed on admin3 istrative leave or any other category of paid leave 

4 during the period during which an appeal (if any) 

5 under this section is ongoing. 

6 ‘‘(3) FAILURE TO REPORT.—An employee de7 moted under subsection (b)(2)(B)(i)— 

8 ‘‘(A) may only receive pay if the employee 

9 reports for duty; and 

10 ‘‘(B) if the employee does not report for 

11 duty, shall not receive pay or other benefits de12 scribed in subsection (f)(5). 

13 ‘‘(d) NOTICE TO CONGRESS.—Not later than 30 days 

14 after removing or demoting an employee under subsection 

15 (b), the head of an agency shall submit to each committee 

16 of Congress with jurisdiction of the activities of the agency 

17 notice in writing of the removal or demotion and the rea18 son for the removal or demotion. 

19 ‘‘(e) PROCEDURE.— 

20 ‘‘(1) IN GENERAL.—The procedures under sec21 tion 7513(b) and chapter 43, shall not apply to a re22 moval or demotion under this section. 

23 ‘‘(2) APPEAL.— 

24 ‘‘(A) IN GENERAL.—Subject to subpara25 graph (B) and subsection (f), any removal or 


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1 demotion under subsection (b) may be appealed 

2 to the Merit Systems Protection Board under 

3 section 7701. 

4 ‘‘(B) TIME FOR MAKING AN APPEAL.—An 

5 appeal under subparagraph (A) of a removal or 

6 demotion may only be made if the appeal is 

7 made not later than 7 days after the date of the 

8 removal or demotion. 

9 ‘‘(f) EXPEDITED REVIEW BY ADMINISTRATIVE LAW

10 JUDGE.— 

11 ‘‘(1) IN GENERAL.—Upon receipt of an appeal 

12 under subsection (e)(2)(A), the Merit Systems Pro13 tection Board shall refer the appeal to an adminis14 trative law judge under section 7701(b)(1), who 

15 shall expedite the appeal and issue a decision not 

16 later than 45 days after the date of the appeal. 

17 ‘‘(2) FINALITY OF DECISION.—Notwithstanding 

18 any other provision of law, including section 7703, 

19 the decision of an administrative law judge under 

20 paragraph (1) shall be final and shall not be subject 

21 to any further appeal. 

22 ‘‘(3) DELAY IN DECISION.—If an administrative 

23 law judge cannot issue a decision before the end of 

24 the 45-day period described in paragraph (1)— 

25 ‘‘(A) the removal or demotion is final; and 


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1 ‘‘(B) not later than 14 days after the end 

2 of the 45-day period, the Merit Systems Protec3 tion Board shall submit to each committee of 

4 Congress with jurisdiction of the activities of 

5 the applicable agency a report that explains the 

6 reasons why a decision was not issued during 

7 the period. 

8 ‘‘(4) NO STAYS.—The Merit Systems Protection 

9 Board or administrative law judge may not stay any 

10 removal or demotion under this section. 

11 ‘‘(5) NO PAY OR BENEFITS DURING PENDING

12 APPEAL.—During the period beginning on the date 

13 on which an employee appeals a removal from the 

14 civil service under subsection (e) and ending on the 

15 date that the administrative law judge issues a final 

16 decision on the appeal, the employee may not receive 

17 any pay, awards, bonuses, incentives, allowances, dif18 ferentials, student loan repayments, special pay19 ments, or benefits. 

20 ‘‘(6) ASSISTANCE BY AGENCY.—To the max21 imum extent practicable, the head of an agency shall 

22 provide to the Merit Systems Protection Board, and 

23 to any administrative law judge to whom an appeal 

24 under this section is referred, such information and 


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1 assistance as may be necessary to ensure an appeal 

2 under this subsection is expedited. 

3 ‘‘(g) LIMITATION ON REMOVAL OR DEMOTION.—If 

4 an employee seeking corrective action (or on behalf of 

5 whom corrective action is sought) from the Office of Spe6 cial Counsel based on an alleged prohibited personnel 

7 practice, the head of an agency may not remove or demote 

8 the employee under subsection (b) without the approval 

9 of the Special Counsel under section 1214(f). 

10 ‘‘(h) RELATION TO OTHER PROVISIONS OF LAW.— 

11 ‘‘(1) ADDITIONAL AUTHORITY.—The authority 

12 provided by this section is in addition to any author13 ity provided under this chapter or chapter 43. 

14 ‘‘(2) NOT SUBJECT TO OTHER PROVISIONS.— 

15 The requirements under any other provision of this 

16 chapter shall not apply to any action under this sec17 tion.’’. 

18 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

19 (1) The table of sections for subchapter II of 

20 chapter 75 of title 5, United States Code, is amend21 ed by adding at the end the following: 

‘‘7515. Removal or demotion of employees based on retaliation against whistleblowers.’’. 

22 (2) Section 4303(f) of title 5, United States 

23 Code, is amended— 


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1 (A) by striking ‘‘or’’ at the end of para2 graph (2); 

3 (B) by striking the period at the end of 

4 paragraph (3) and inserting ‘‘, or’’; and 

5 (C) by adding at the end the following: 

6 ‘‘(4) any removal or demotion under section 

7 7515.’’. 

8 SEC. 105. SUICIDE BY EXECUTIVE BRANCH EMPLOYEES. 

9 (a) REFERRAL.—The head of the Executive agency 

10 employing an executive branch employee who commits sui11 cide shall refer the matter to the Inspector General of the 

12 Executive agency, or senior ethics official of the Executive 

13 agency for an Executive agency without an Inspector Gen14 eral, to determine whether the suicide of the executive 

15 branch employee was work-related. 

16 (b) INFORMATION TO NEXT OF KIN.— 

17 (1) IN GENERAL.—Subject to paragraph (2), 

18 the head of the Executive agency employing an exec19 utive branch employee who commits suicide shall 

20 provide the personnel file of the Executive agency to 

21 the next of kin of the executive branch employee. 

22 (2) NATIONAL SECURITY EXCEPTION.—The 

23 head of an Executive agency may withhold informa24 tion in a personnel file under paragraph (1) if the 


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1 head determines the disclosure of the information 

2 would likely compromise national security. 

3 SEC. 106. ACCESS TO MEDICAL FILES. 

4 (a) IN GENERAL.—Except for an emergency situa5 tion, an executive branch employee may not access the 

6 medical record of another executive branch employee, un7 less the executive branch employee whose medical record 

8 will be accessed provides consent to the access. 

9 (b) EMERGENCY SITUATIONS.—The Director of the 

10 Office of Management and Budget shall promulgate regu11 lations defining the term ‘‘emergency situation’’ for pur12 poses of this section. 

13 SEC. 107. TRAINING FOR SUPERVISORS. 

14 The head of each Executive agency shall provide 

15 training regarding how to respond to complaints alleging 

16 a violation of whistleblower protections available to execu17 tive branch employee of the Executive agency to— 

18 (1) executive branch employees appointed to su19 pervisory positions in the Executive agency who have 

20 not previously served as a supervisor; and 

21 (2) on an annual basis, to all executive branch 

22 employees of the Executive agency serving in a su23 pervisory position. 


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1 SEC. 108. INFORMATION ON WHISTLEBLOWER PROTEC2 TIONS. 

3 (a) IN GENERAL.—Chapter 23 of title 5, United 

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘§ 2307. Information on whistleblower protections 

7 ‘‘(a) DEFINITIONS.—In this section— 

8 ‘‘(1) the term ‘new employee’ means an indi9 vidual— 

10 ‘‘(A) appointed to a position as an em11 ployee on or after the date of enactment of the 

12 Dr. Chris Kirkpatrick Whistleblower Protection 

13 Act of 2015; and 

14 ‘‘(B) who has not previously served as an 

15 employee; and 

16 ‘‘(2) the term ‘whistleblower protections’ 

17 means— 

18 ‘‘(A) the protections against and remedies 

19 for a prohibited personnel practice described in 

20 paragraph (8) or subparagraph (A)(i), (B), (C), 

21 or (D) of paragraph (9) of section 2302(b); and 

22 ‘‘(B) similar protections for an employee 

23 under any other provision of law. 

24 ‘‘(b) INFORMATION FOR NEW HIRES.—The head of 

25 each agency or other establishment in the Federal Govern26 ment shall provide each new employee of the agency or 


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1 establishment information regarding the whistleblower 

2 protections available to the new employee and the role of 

3 the Office of Special Counsel. 

4 ‘‘(c) INFORMATION ONLINE.—The head of each agen5 cy or other establishment in the Federal Government shall 

6 make available information regarding whistleblower pro7 tections applicable to employees of the agency or other es8 tablishment on any online portal that is made available 

9 only to employees of the agency or other establishment.’’. 

10 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

11 The table of sections for chapter 23 of title 5, United 

12 States Code, is amended by adding at the end the fol13 lowing: 

‘‘2307. Information on whistleblower protections.’’. 

14 TITLE II—DEPARTMENT OF 

15 VETERANS AFFAIRS EMPLOYEES 

16 SEC. 201. PROTECTING MEDICAL PRIVACY OF EMPLOYEES 

17 OF THE DEPARTMENT OF VETERANS AF18 FAIRS. 

19 (a) IN GENERAL.—Chapter 7 of title 38, United 

20 States Code, is amended by adding at the end the fol21 lowing new section: 

22 ‘‘§ 714. Accessing of medical records of employees 

23 ‘‘(a) NOTICE OF ACCESS.—(1) Not later than five 

24 days after an employee of the Department accesses the 

25 medical record of another employee of the Department, 


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1 the Secretary shall notify the such other employee of such 

2 access. 

3 ‘‘(2) Notice under paragraph (1) shall include the fol4 lowing: 

5 ‘‘(A) The name of the employee accessing the 

6 medical record. 

7 ‘‘(B) The date and time the employee accessed 

8 the medical record. 

9 ‘‘(C) The period during which the employee 

10 accessed the medical record. 

11 ‘‘(D) A description of any modification of the 

12 medical record made by the employee. 

13 ‘‘(b) DETERMINATION OF PROHIBITED ACCESS.—(1) 

14 If an employee of the Department receives notice under 

15 subsection (a) that a medical record of the employee was 

16 accessed by another employee of the Department and the 

17 employee believes that such access was conducted in viola18 tion of an applicable provision of Federal privacy law, the 

19 employee shall file a complaint with the Office of Account20 ability Review. 

21 ‘‘(2) If the Office of Accountability Review receives 

22 a complaint from an employee with respect to a notice that 

23 the employee received under subsection (a) not more than 

24 45 days after the notice was transmitted to the employee, 


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1 the Office of Accountability Review shall, not later than 

2 30 days after receiving such complaint— 

3 ‘‘(A) determine whether the access identified in 

4 the notice was conducted in violation of an applica5 ble provision of Federal privacy law; and 

6 ‘‘(B) notify the employee of the determination. 

7 ‘‘(c) ACTION IN RESPONSE TO UNAUTHORIZED AC8 CESS.—(1) If the Office of Accountability Review deter9 mines that an employee of the Department has accessed 

10 the medical record of another employee of the Department 

11 in violation of an applicable provision of Federal privacy 

12 law, the Secretary shall— 

13 ‘‘(A) for the first such access, issue an order 

14 that, for the two-year period beginning on the date 

15 of the order, the employee is not eligible to receive 

16 any bonus or cash award from the Department, in17 cluding— 

18 ‘‘(i) an award under chapter 45 of title 5; 

19 ‘‘(ii) an award under section 5384 of title 

20 5; and 

21 ‘‘(iii) a retention bonus under section 5754 

22 of title 5; 

23 ‘‘(B) for the second such access, suspend the 

24 employee for not less than 14 days; and 


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1 ‘‘(C) for the third such access, terminate the 

2 employee. 

3 ‘‘(2) Any action under paragraph (1)— 

4 ‘‘(A) shall be taken in accordance with chapter 

5 75 of title 5; and 

6 ‘‘(B) may be appealed to the Merit Systems 

7 Protection Board under section 7701 of title 5. 

8 ‘‘(d) APPLICABLE PROVISION OF FEDERAL PRIVACY

9 LAW DEFINED.—In this section, the term ‘applicable pro10 vision of Federal privacy law’ includes the following: 

11 ‘‘(1) The Federal regulations (concerning the 

12 privacy of individually identifiable health informa13 tion) promulgated under section 264(c) of the 

14 Health Insurance Portability and Accountability Act 

15 of 1996. 

16 ‘‘(2) Section 552a of title 5 (commonly known 

17 as the ‘Privacy Act of 1974’).’’. 

18 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

19 The table of sections for chapter 7 of title 38, United 

20 States Code, is amended by adding at the end the fol21 lowing new item: 

‘‘714. Accessing of medical records of employees.’’. 

22 SEC. 202. MENTAL HEALTH SERVICES FOR EMPLOYEES OF 

23 THE DEPARTMENT OF VETERANS AFFAIRS. 

24 (a) OUTREACH ON AVAILABILITY OF SERVICES.— 

25 The Secretary of Veterans Affairs shall conduct a program 


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1 of outreach to employees of the Department of Veterans 

2 Affairs to inform them of the mental health services avail3 able to them. 

4 (b) STUDY ON USE OF MENTAL HEALTH PROFES5 SIONALS OF THE DEPARTMENT TO PROVIDE SERVICES

6 TO EMPLOYEES.— 

7 (1) IN GENERAL.—The Secretary of Veterans 

8 Affairs shall conduct a study to assess the feasibility 

9 of using mental health professionals who provide 

10 mental health services for the Department of Vet11 erans Affairs to provide mental health services to 

12 employees of the Department. 

13 (2) REPORT.—Upon completion of the study re14 quired by paragraph (1), the Secretary shall submit 

15 to Congress a report on the findings of the Secretary 

16 with respect to the study. 

17 SEC. 203. PROTOCOLS TO ADDRESS THREATS AGAINST EM18 PLOYEES OF THE DEPARTMENT OF VET19 ERANS AFFAIRS. 

20 The Secretary of Veterans Affairs shall develop pro21 tocols to address threats from individuals receiving health 

22 care from the Department of Veterans Affairs directed to23 wards employees of the Department who are providing 

24 such health care. 


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1 SEC. 204. COMPTROLLER GENERAL OF THE UNITED 

2 STATES STUDY ON ACCOUNTABILITY OF 

3 CHIEFS OF POLICE OF DEPARTMENT OF VET4 ERANS AFFAIRS MEDICAL CENTERS. 

5 The Comptroller General of the United States shall 

6 conduct a study to assess the reporting, accountability, 

7 and chain of command structure of the Department of 

8 Veterans Affairs police officers at medical centers of the 

9 Department. 

Æ 


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