I 

116TH CONGRESS 

1ST SESSION H. R. 3357 

To reauthorize and modify the authority of the Merit Systems Protection 

Board, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 19, 2019 

Mr. HICE of Georgia (for himself and Mr. LOUDERMILK) introduced the following bill; which was referred to the Committee on Oversight and Reform, and in addition to the Committee on Veterans’ Affairs, for a period 

to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee 

concerned 

A BILL 

To reauthorize and modify the authority of the Merit 

Systems Protection Board, 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 ‘‘Merit Systems Protection Board Reauthorization Act of 

6 2019’’. 

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

8 this Act is as follows: 


kjohnson on DSK79L0C42 with BILLS
2 

•HR 3357 IH

Sec. 1. Short title; table of contents. 

Sec. 2. Reauthorize appropriations for Merit Systems Protection Board. 

Sec. 3. Filing fee for Merit Systems Protection Board claims and appeals. 

Sec. 4. Modification to procedures and authority of the Merit Systems Protection Board. 

Sec. 5. Limitation on furlough appeals to the Merit Systems Protection Board. 

Sec. 6. Reappointment of Merit Systems Protection Board members. 

Sec. 7. Amendments to Department of Veterans Affairs Accountability and 

Whistleblower Protection Act of 2017. 

1 SEC. 2. REAUTHORIZE APPROPRIATIONS FOR MERIT SYS2 TEMS PROTECTION BOARD. 

3 (a) IN GENERAL.—Paragraph (1) of section 8(a) of 

4 the Whistleblower Protection Act of 1989 (Public Law 

5 101–12; 5 U.S.C. 5509 note) is amended to read as fol6 lows: 

7 ‘‘(1) for each of fiscal years 2020, 2021, 2022, 

8 2023, and 2024— 

9 ‘‘(A) $44,490,000 to carry out subchapter 

10 I of chapter 12 of title 5, United States Code 

11 (as amended by this Act); and 

12 ‘‘(B) not to exceed $2,345,000, to be 

13 transferred from the Civil Service Retirement 

14 and Disability Fund in amounts determined by 

15 the Merit Systems Protection Board, for admin16 istrative expenses to adjudicate retirement ap17 peals; and’’. 

18 (b) EFFECTIVE DATE.—This section shall take effect 

19 on October 1, 2019. 


kjohnson on DSK79L0C42 with BILLS
3 

•HR 3357 IH

1 SEC. 3. FILING FEE FOR MERIT SYSTEMS PROTECTION 

2 BOARD CLAIMS AND APPEALS. 

3 (a) IN GENERAL.—Section 1204 of title 5, United 

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

6 ‘‘(o)(1) The Board shall establish and collect a filing 

7 fee to be paid by any individual filing a claim or appeal 

8 with the Board under this title, or under any other law, 

9 rule, or regulation, consistent with the requirements of 

10 this subsection. 

11 ‘‘(2) The filing fee established under paragraph (1) 

12 may— 

13 ‘‘(A) not exceed the amount that is 50 percent 

14 of the fee required for filing a civil action in a 

15 United States district court; 

16 ‘‘(B) be adjusted from time to time as the 

17 Board considers appropriate; and 

18 ‘‘(C) upon request of the individual filing the 

19 claim or appeal, be waived by the Board if the 

20 Board determines the fee would create undue hard21 ship. 

22 ‘‘(3) A filing fee shall not be required with respect 

23 to any action— 

24 ‘‘(A) brought by the Special Counsel under sec25 tion 1214, 1215, or 1216; or 


kjohnson on DSK79L0C42 with BILLS
4 

•HR 3357 IH

1 ‘‘(B) taken against an administrative law judge 

2 under section 7521. 

3 ‘‘(4) A filing fee paid by an individual for an appeal 

4 or claim before the Board shall cover any subsequent filing 

5 by the individual with the Board during the litigation of 

6 that appeal or claim. Such fee shall be returned to the 

7 individual if the individual is the prevailing party.’’. 

8 (b) DEADLINE.—The Merit Systems Protection 

9 Board shall establish and collect the filing fee required 

10 under subsection (o) of section 1204 of title 5, United 

11 States Code, as added by subsection (a), not later than 

12 1 year after the date of the enactment of this Act. 

13 (c) APPLICATION.—The fee required under such sub14 section (o) shall apply to any claim or appeal filed with 

15 the Merit Systems Protection Board after the date the fee 

16 is established pursuant to subsection (b). 

17 SEC. 4. MODIFICATION TO PROCEDURES AND AUTHORITY 

18 OF THE MERIT SYSTEMS PROTECTION 

19 BOARD. 

20 (a) SUMMARY JUDGMENT.—Section 7701 of title 5, 

21 United States Code, is amended— 

22 (1) in subsection (a)(1), by inserting ‘‘, except 

23 as provided in subsection (b)’’ after ‘‘kept’’; and 

24 (2) in subsection (b)(1)— 


kjohnson on DSK79L0C42 with BILLS
5 

•HR 3357 IH

1 (A) by striking ‘‘The Board may’’ and in2 serting ‘‘(A) The Board may’’; 

3 (B) by striking the second and third sen4 tences; and 

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

6 ‘‘(B) The Board, an administrative law judge ap7 pointed by the Board under section 3105, and any officer 

8 or employee of the Board designated by the Board (as the 

9 case may be) shall make a decision after receipt of the 

10 written representations of the parties to the appeal and 

11 after opportunity for a hearing under subsection (a)(1) of 

12 this section, except as provided under subparagraph (C). 

13 ‘‘(C) The Board, an administrative law judge ap14 pointed by the Board under section 3105, and any officer 

15 or employee of the Board designated by the Board (as the 

16 case may be) may, with respect to any party, grant a mo17 tion for summary judgment. Any hearing under subsection 

18 (a)(1) of this section shall be limited to the issues remain19 ing in the case, or, if applicable, a decision may be issued 

20 without holding a hearing. 

21 ‘‘(D) A copy of the decision under subparagraph (B) 

22 or (C) shall be furnished to each party to the appeal and 

23 to the Office of Personnel Management.’’. 


kjohnson on DSK79L0C42 with BILLS
6 

•HR 3357 IH

1 (b) LIMIT ON MITIGATION.—Paragraph (3) of section 

2 7701(b) of title 5, United States Code, is amended to read 

3 as follows: 

4 ‘‘(3) With respect to an appeal from a performance 

5 or conduct-based adverse action under subchapter II or 

6 V of chapter 75, the Board may not mitigate the personnel 

7 action involved unless the action is so disproportionate as 

8 to be wholly without justification.’’. 

9 (c) EVIDENTIARY BURDEN.—Paragraph (1) of sec10 tion 7701(c) of title 5, United States Code, is amended 

11 to read as follows: 

12 ‘‘(1) Subject to paragraph (2), the decision of the 

13 agency shall be sustained under subsection (b) only if the 

14 agency’s decision is supported by substantial evidence.’’. 

15 (d) EFFECTIVE DATE; APPLICATION.— 

16 (1) EFFECTIVE DATE.—The amendments made 

17 by this section shall take effect on the date that is 

18 90 days after the date of the enactment of this Act. 

19 (2) APPLICATION.—The amendments made by 

20 this section shall apply with respect to any appeal 

21 filed under section 7701 of title 5, United States 

22 Code, on or after the effective date in paragraph (1). 


kjohnson on DSK79L0C42 with BILLS
7 

•HR 3357 IH

1 SEC. 5. LIMITATION ON FURLOUGH APPEALS TO THE 

2 MERIT SYSTEMS PROTECTION BOARD. 

3 (a) IN GENERAL.—Section 3595a of title 5, United 

4 States Code, is amended— 

5 (1) by striking subsection (a) and inserting the 

6 following: 

7 ‘‘(a) For the purposes of this section— 

8 ‘‘(1) the term ‘furlough’ means the placement 

9 of a senior executive in a temporary status in which 

10 the senior executive has no duties and is not paid 

11 when the placement in such status is by reason of 

12 insufficient work or funds or for other nondiscipli13 nary reasons; and 

14 ‘‘(2) the term ‘emergency furlough’ has the 

15 meaning given that term in section 7501(3).’’; 

16 (2) in subsection (b), by adding after the period 

17 at the end the following: ‘‘Such regulations shall 

18 provide for procedures for emergency furloughs for 

19 career appointees, consistent with the procedures 

20 promulgated by the Office under section 7504(b).’’; 

21 and 

22 (3) by striking subsection (c) and inserting the 

23 following: 

24 ‘‘(c) A career appointee who is furloughed in excess 

25 of 14 days is entitled to appeal to the Merit Systems ProVerDate Sep 11 2014 03:26 Jun 22, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3357.IH H3357

kjohnson on DSK79L0C42 with BILLS
8 

•HR 3357 IH

1 tection Board under section 7701. The previous sentence 

2 shall not apply to any emergency furlough.’’. 

3 (b) APPLICATION.—The amendments made by sub4 section (a) shall apply to any furlough occurring on or 

5 after the date that is 90 days after the date of the enact6 ment of this Act. 

7 SEC. 6. REAPPOINTMENT OF MERIT SYSTEMS PROTECTION 

8 BOARD MEMBERS. 

9 Subsection (c) of section 1202 of title 5, United 

10 States Code, is amended— 

11 (1) by striking ‘‘may not be reappointed to any 

12 following term but’’; and 

13 (2) by inserting before the period at the end the 

14 following: ‘‘, unless the member is reappointed’’. 

15 SEC. 7. AMENDMENTS TO DEPARTMENT OF VETERANS AF16 FAIRS ACCOUNTABILITY AND WHISTLE17 BLOWER PROTECTION ACT OF 2017. 

18 (a) IN GENERAL.—Section 714 of title 38, United 

19 States Code, is amended— 

20 (1) in subsection (c)(4)(A), by striking ‘‘, which 

21 shall refer such appeal to an administrative judge 

22 pursuant to section 7701(b)(1) of title 5’’; and 

23 (2) in subsection (d)— 


kjohnson on DSK79L0C42 with BILLS
9 

•HR 3357 IH

1 (A) by striking ‘‘the administrative judge’’ 

2 in each place it appears and inserting ‘‘the 

3 Merit Systems Protection Board’’; 

4 (B) by striking paragraph (3); 

5 (C) by redesignating paragraphs (4) 

6 through (10) as paragraphs (3) through (9), re7 spectively; and 

8 (D) in paragraph (4), as redesignated by 

9 subparagraph (C), by striking ‘‘paragraph (3)’’ 

10 and inserting ‘‘paragraph (1)’’. 

11 (b) APPLICATION.—The amendments made by sub12 section (a) shall apply to any appeal made under section 

13 714(c)(4)(A) of title 38, United States Code, after the 

14 date of the enactment of this Act. 

Æ 


kjohnson on DSK79L0C42 with BILLS