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[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1994 Reported in House (RH)]

                                                 Union Calendar No. 170
114th CONGRESS
  1st Session
                                H. R. 1994

                      [Report No. 114-225, Part I]

 To amend title 38, United States Code, to provide for the removal or 
 demotion of employees of the Department of Veterans Affairs based on 
           performance or misconduct, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             April 23, 2015

 Mr. Miller of Florida (for himself, Mr. Costello of Pennsylvania, Mr. 
 Huelskamp, Mr. Abraham, Mr. Benishek, and Mr. Murphy of Pennsylvania) 
 introduced the following bill; which was referred to the Committee on 
 Veterans' Affairs, and in addition to the Committee on Oversight and 
 Government Reform, 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

                             July 23, 2015

Additional sponsors: Mr. Babin, Mr. Latta, Mr. Rouzer, Mrs. Radewagen, 
   Ms. Sinema, Mr. Farenthold, Mr. Bilirakis, Mr. Westmoreland, Mr. 
Stewart, Mr. Jones, Mr. Rothfus, Mr. Carter of Georgia, Mr. Hensarling, 
 Mr. Smith of Texas, Mr. Joyce, Mr. Dent, Mr. Peters, Mr. Tom Price of 
    Georgia, Mr. Kline, Mr. Boustany, Mr. Cramer, Ms. McSally, Mrs. 
 McMorris Rodgers, Mr. Emmer of Minnesota, Mr. Lamborn, Mr. Bishop of 
 Michigan, Mr. Buchanan, Mr. Zeldin, Mr. DeSantis, Mr. Hill, Mr. Yoho, 
 Mr. Sensenbrenner, Mr. Gibbs, Mr. Thornberry, Mr. Salmon, Mr. McCaul, 
 Mr. Jody B. Hice of Georgia, Mr. Pearce, Mr. LaMalfa, Mr. Knight, Mr. 
 Simpson, Mr. Amodei, Mrs. Roby, Mr. Coffman, Mr. Messer, Mr. Hunter, 
Mr. Loudermilk, Mr. Graves of Georgia, Mr. Johnson of Ohio, Mr. Carter 
    of Texas, Mr. Weber of Texas, Mr. Culberson, Mr. Williams, Mrs. 
  Walorski, Mr. Hurd of Texas, Mr. Gosar, Mr. Wittman, Mr. Curbelo of 
  Florida, Mr. Zinke, Mr. Tipton, Mr. Perry, Mr. Olson, Mr. Rooney of 
  Florida, Mr. Guinta, Mr. Pittenger, Mr. Hudson, Mr. Goodlatte, Mr. 
 Mica, Mr. Barr, Mr. Garrett, Mr. Walberg, Mrs. Lummis, Mr. Webster of 
  Florida, Mr. Bost, Mr. Rigell, Mrs. Ellmers of North Carolina, Mr. 
Gibson, Mr. Marino, Mr. Brat, Ms. Herrera Beutler, Mrs. Mimi Walters of 
 California, Mr. Newhouse, Mrs. Love, Mr. Palazzo, Mr. Frelinghuysen, 
  Mr. Flores, Ms. Granger, Mr. Poe of Texas, Mr. Cook, Mr. Allen, Mr. 
       Young of Iowa, Mr. Katko, and Mr. Thompson of Pennsylvania

                             July 23, 2015

  Deleted sponsor: Mrs. Lawrence (added May 12, 2015; deleted June 2, 
                                 2015)

                             July 23, 2015

   Reported from the Committee on Veterans' Affairs with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

                             July 23, 2015

The Committee on Oversight and Government Reform discharged; committed 
   to the Committee of the Whole House on the State of the Union and 
                         ordered to be printed
 [For text of introduced bill, see copy of bill as introduced on April 
                               23, 2015]

_______________________________________________________________________

                                 A BILL

 
 To amend title 38, United States Code, to provide for the removal or 
 demotion of employees of the Department of Veterans Affairs based on 
           performance or misconduct, and for other purposes.

 

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``VA Accountability Act of 2015''.

SEC. 2. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON PERFORMANCE OR 
              MISCONDUCT.

    (a) In General.--Chapter 7 of title 38, United States Code, is 
amended by adding at the end the following new section:
``Sec. 715. Employees: removal or demotion based on performance or 
              misconduct
    ``(a) In General.--The Secretary may remove or demote an individual 
who is an employee of the Department if the Secretary determines the 
performance or misconduct of the individual warrants such removal or 
demotion. If the Secretary so removes or demotes such an individual, 
the Secretary may--
            ``(1) remove the individual from the civil service (as 
        defined in section 2101 of title 5); or
            ``(2) demote the individual by means of--
                    ``(A) a reduction in grade for which the individual 
                is qualified and that the Secretary determines is 
                appropriate; or
                    ``(B) a reduction in annual rate of pay that the 
                Secretary determines is appropriate.
    ``(b) Pay of Certain Demoted Individuals.--(1) Notwithstanding any 
other provision of law, any individual subject to a demotion under 
subsection (a)(2)(A) shall, beginning on the date of such demotion, 
receive the annual rate of pay applicable to such grade.
    ``(2) An individual so demoted may not be placed on administrative 
leave or any other category of paid leave during the period during 
which an appeal (if any) under this section is ongoing, and may only 
receive pay if the individual reports for duty. If an individual so 
demoted does not report for duty, such individual shall not receive pay 
or other benefits pursuant to subsection (e)(5).
    ``(c) Notice to Congress.--Not later than 30 days after removing or 
demoting an individual under subsection (a), the Secretary shall submit 
to the Committees on Veterans' Affairs of the Senate and House of 
Representatives notice in writing of such removal or demotion and the 
reason for such removal or demotion.
    ``(d) Procedure.--(1) The procedures under section 7513(b) of title 
5 and chapter 43 of such title shall not apply to a removal or demotion 
under this section.
    ``(2)(A) Subject to subparagraph (B) and subsection (e), any 
removal or demotion under subsection (a) may be appealed to the Merit 
Systems Protection Board under section 7701 of title 5.
    ``(B) An appeal under subparagraph (A) of a removal or demotion may 
only be made if such appeal is made not later than seven days after the 
date of such removal or demotion.
    ``(e) Expedited Review by Administrative Judge.--(1) Upon receipt 
of an appeal under subsection (d)(2)(A), the Merit Systems Protection 
Board shall refer such appeal to an administrative judge pursuant to 
section 7701(b)(1) of title 5. The administrative judge shall expedite 
any such appeal under such section and, in any such case, shall issue a 
decision not later than 45 days after the date of the appeal.
    ``(2) Notwithstanding any other provision of law, including section 
7703 of title 5, the decision of an administrative judge under 
paragraph (1) shall be final and shall not be subject to any further 
appeal.
    ``(3) In any case in which the administrative judge cannot issue a 
decision in accordance with the 45-day requirement under paragraph (1), 
the removal or demotion is final. In such a case, the Merit Systems 
Protection Board shall, within 14 days after the date that such removal 
or demotion is final, submit to Congress and the Committees on 
Veterans' Affairs of the Senate and House of Representatives a report 
that explains the reasons why a decision was not issued in accordance 
with such requirement.
    ``(4) The Merit Systems Protection Board or administrative judge 
may not stay any removal or demotion under this section.
    ``(5) During the period beginning on the date on which an 
individual appeals a removal from the civil service under subsection 
(d) and ending on the date that the administrative judge issues a final 
decision on such appeal, such individual may not receive any pay, 
awards, bonuses, incentives, allowances, differentials, student loan 
repayments, special payments, or benefits.
    ``(6) To the maximum extent practicable, the Secretary shall 
provide to the Merit Systems Protection Board, and to any 
administrative judge to whom an appeal under this section is referred, 
such information and assistance as may be necessary to ensure an appeal 
under this subsection is expedited.
    ``(f) Whistleblower Protection.--(1) In the case of an individual 
seeking corrective action (or on behalf of whom corrective action is 
sought) from the Office of Special Counsel based on an alleged 
prohibited personnel practice described in section 2302(b) of title 5, 
the Secretary may not remove or demote such individual under subsection 
(a) without the approval of the Special Counsel under section 1214(f) 
of title 5.
    ``(2) In the case of an individual who has filed a whistleblower 
complaint, as such term is defined in section 731 of this title, the 
Secretary may not remove or demote such individual under subsection (a) 
until the central whistleblower office under section 732(h) of this 
title has made a final decision with respect to the whistleblower 
complaint.
    ``(g) Termination of Investigations by Office of Special Counsel.--
Notwithstanding any other provision of law, the Special Counsel 
(established by section 1211 of title 5) may terminate an investigation 
of a prohibited personnel practice alleged by an employee or former 
employee of the Department after the Special Counsel provides to the 
employee or former employee a written statement of the reasons for the 
termination of the investigation. Such statement may not be admissible 
as evidence in any judicial or administrative proceeding without the 
consent of such employee or former employee.
    ``(h) Relation to Title 5.--The authority provided by this section 
is in addition to the authority provided by subchapter V of chapter 75 
of title 5 and chapter 43 of such title.
    ``(i) Definitions.--In this section:
            ``(1) The term `individual' means an individual occupying a 
        position at the Department but does not include--
                    ``(A) an individual, as that term is defined in 
                section 713(g)(1); or
                    ``(B) a political appointee.
            ``(2) The term `grade' has the meaning given such term in 
        section 7511(a) of title 5.
            ``(3) The term `misconduct' includes neglect of duty, 
        malfeasance, or failure to accept a directed reassignment or to 
        accompany a position in a transfer of function.
            ``(4) The term `political appointee' means an individual 
        who is--
                    ``(A) employed in a position described under 
                sections 5312 through 5316 of title 5 (relating to the 
                Executive Schedule);
                    ``(B) a limited term appointee, limited emergency 
                appointee, or noncareer appointee in the Senior 
                Executive Service, as defined under paragraphs (5), 
                (6), and (7), respectively, of section 3132(a) of title 
                5; or
                    ``(C) employed in a position of a confidential or 
                policy-determining character under schedule C of 
                subpart C of part 213 of title 5 of the Code of Federal 
                Regulations.''.
    (b) Clerical and Conforming Amendments.--
            (1) Clerical.--The table of sections at the beginning of 
        such chapter is amended by adding at the end the following new 
        item:

``715. Employees: removal or demotion based on performance or 
                            misconduct.''.
            (2) Conforming.--Section 4303(f) of title 5, United States 
        Code, is amended--
                    (A) by striking ``or'' at the end of paragraph (2);
                    (B) by striking the period at the end of paragraph 
                (3) and inserting ``, or''; and
                    (C) by adding at the end the following:
            ``(4) any removal or demotion under section 715 of title 
        38.''.

SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EMPLOYEES OF DEPARTMENT OF 
              VETERANS AFFAIRS.

    (a) Probationary Period.--
            (1) In general.--Chapter 7 of title 38, United States Code, 
        as amended by section 2, is further amended by adding at the 
        end the following new section:
``Sec. 717. Probationary period for employees
    ``(a) In General.--Notwithstanding sections 3321 and 3393(d) of 
title 5, the appointment of a covered employee shall become final only 
after such employee has served a probationary period of 18 months. The 
Secretary may extend a probationary period under this subsection at the 
discretion of the Secretary.
    ``(b) Covered Employee.--In this section, the term `covered 
employee'--
            ``(1) means any individual--
                    ``(A) appointed to a permanent position within the 
                competitive service at the Department; or
                    ``(B) appointed as a career appointee (as that term 
                is defined in section 3132(a)(4) of title 5) within the 
                Senior Executive Service at the Department; and
            ``(2) does not include any individual with a probationary 
        period prescribed by section 7403 of this title.
    ``(c) Permanent Hires.--Upon the expiration of a covered employee's 
probationary period under subsection (a), the supervisor of the 
employee shall determine whether the appointment becomes final based on 
regulations prescribed for such purpose by the Secretary.''.
            (2) Clerical and conforming amendments.--
                    (A) Clerical.--The table of sections at the 
                beginning of such chapter, as amended by section 2, is 
                further amended by adding at the end the following new 
                item:

``717. Probationary period for employees.''.
                    (B) Conforming.--Title 5, United States Code, is 
                amended--
                            (i) in section 3321(c)--
                                    (I) by striking ``Service or'' and 
                                inserting ``Service,''; and
                                    (II) by inserting at the end before 
                                the period the following: ``, or any 
                                individual covered by section 717 of 
                                title 38''; and
                            (ii) in section 3393(d), by adding at the 
                        end after the period the following: ``The 
                        preceding sentence shall not apply to any 
                        individual covered by section 717 of title 
                        38.''.
    (b) Application.--Section 717 of title 38, United States Code, as 
added by subsection (a)(1), shall apply to any covered employee (as 
that term is defined in subsection (b) of such section 717, as so 
added) appointed after the date of the enactment of this Act.

SEC. 4. TREATMENT OF WHISTLEBLOWER COMPLAINTS IN DEPARTMENT OF VETERANS 
              AFFAIRS.

    (a) In General.--Chapter 7 of title 38, United States Code, is 
further amended by adding at the end the following new subchapter:

               ``SUBCHAPTER II--WHISTLEBLOWER COMPLAINTS

``Sec. 731. Whistleblower complaint defined
    ``In this subchapter, the term `whistleblower complaint' means a 
complaint by an employee of the Department disclosing, or assisting 
another employee to disclose, a potential violation of any law, rule, 
or regulation, or gross mismanagement, gross waste of funds, abuse of 
authority, or substantial and specific danger to public health and 
safety.
``Sec. 732. Treatment of whistleblower complaints
    ``(a) Filing.--(1) In addition to any other method established by 
law in which an employee may file a whistleblower complaint, an 
employee of the Department may file a whistleblower complaint in 
accordance with subsection (g) with a supervisor of the employee.
    ``(2) Except as provided by subsection (d)(1), in making a 
whistleblower complaint under paragraph (1), an employee shall file the 
initial complaint with the immediate supervisor of the employee.
    ``(b) Notification.--(1) Not later than four business days after 
the date on which a supervisor receives a whistleblower complaint by an 
employee under this section, the supervisor shall notify, in writing, 
the employee of whether the supervisor determines that there is a 
reasonable likelihood that the complaint discloses a violation of any 
law, rule, or regulation, or gross mismanagement, gross waste of funds, 
abuse of authority, or substantial and specific danger to public health 
and safety. The supervisor shall retain written documentation regarding 
the whistleblower complaint and shall submit to the next-level 
supervisor and the central whistleblower office described in subsection 
(h) a written report on the complaint.
    ``(2) On a monthly basis, the supervisor shall submit to the 
appropriate director or other official who is superior to the 
supervisor a written report that includes the number of whistleblower 
complaints received by the supervisor under this section during the 
month covered by the report, the disposition of such complaints, and 
any actions taken because of such complaints pursuant to subsection 
(c). In the case in which such a director or official carries out this 
paragraph, the director or official shall submit such monthly report to 
the supervisor of the director or official and to the central 
whistleblower office described in subsection (h).
    ``(c) Positive Determination.--If a supervisor makes a positive 
determination under subsection (b)(1) regarding a whistleblower 
complaint of an employee, the supervisor shall include in the 
notification to the employee under such subsection the specific actions 
that the supervisor will take to address the complaint.
    ``(d) Filing Complaint With Next-level Supervisors.--(1) If any 
circumstance described in paragraph (3) is met, an employee may file a 
whistleblower complaint in accordance with subsection (g) with the 
next-level supervisor who shall treat such complaint in accordance with 
this section.
    ``(2) An employee may file a whistleblower complaint with the 
Secretary if the employee has filed the whistleblower complaint to each 
level of supervisors between the employee and the Secretary in 
accordance with paragraph (1).
    ``(3) A circumstance described in this paragraph are any of the 
following circumstances:
            ``(A) A supervisor does not make a timely determination 
        under subsection (b)(1) regarding a whistleblower complaint.
            ``(B) The employee who made a whistleblower complaint 
        determines that the supervisor did not adequately address the 
        complaint pursuant to subsection (c).
            ``(C) The immediate supervisor of the employee is the basis 
        of the whistleblower complaint.
    ``(e) Transfer of Employee Who Files Whistleblower Complaint.--If a 
supervisor makes a positive determination under subsection (b)(1) 
regarding a whistleblower complaint filed by an employee, the Secretary 
shall--
            ``(1) inform the employee of the ability to volunteer for a 
        transfer in accordance with section 3352 of title 5; and
            ``(2) give preference to the employee for such a transfer 
        in accordance with such section.
    ``(f) Prohibition on Exemption.--The Secretary may not exempt any 
employee of the Department from being covered by this section.
    ``(g) Whistleblower Complaint Form.--(1) A whistleblower complaint 
filed by an employee under subsection (a) or (d) shall consist of the 
form described in paragraph (2) and any supporting materials or 
documentation the employee determines necessary.
    ``(2) The form described in this paragraph is a form developed by 
the Secretary, in consultation with the Special Counsel, that includes 
the following:
            ``(A) An explanation of the purpose of the whistleblower 
        complaint form.
            ``(B) Instructions for filing a whistleblower complaint as 
        described in this section.
            ``(C) An explanation that filing a whistleblower complaint 
        under this section does not preclude the employee from any 
        other method established by law in which an employee may file a 
        whistleblower complaint.
            ``(D) A statement directing the employee to information 
        accessible on the Internet website of the Department as 
        described in section 735(c).
            ``(E) Fields for the employee to provide--
                    ``(i) the date that the form is submitted;
                    ``(ii) the name of the employee;
                    ``(iii) the contact information of the employee;
                    ``(iv) a summary of the whistleblower complaint 
                (including the option to append supporting documents 
                pursuant to paragraph (1)); and
                    ``(v) proposed solutions to complaint.
            ``(F) Any other information or fields that the Secretary 
        determines appropriate.
    ``(3) The Secretary, in consultation with the Special Counsel, 
shall develop the form described in paragraph (2) by not later than 60 
days after the date of the enactment of this section.
    ``(h) Central Whistleblower Office.--(1) The Secretary shall ensure 
that the central whistleblower office--
            ``(A) is not an element of the Office of the General 
        Counsel;
            ``(B) is not headed by an official who reports to the 
        General Counsel;
            ``(C) does not provide, or receive from, the General 
        Counsel any information regarding a whistleblower complaint 
        except pursuant to an action regarding the complaint before an 
        administrative body or court; and
            ``(D) does not provide advice to the General Counsel.
    ``(2) The central whistleblower office shall be responsible for 
investigating all whistleblower complaints of the Department, 
regardless of whether such complaints are made by or against an 
employee who is not a member of the Senior Executive Service.
    ``(3) The Secretary shall ensure that the central whistleblower 
office maintains a toll-free hotline to anonymously receive 
whistleblower complaints.
    ``(4) In this subsection, the term `central whistleblower office' 
means the Office of Accountability Review or a successor office that is 
established or designated by the Secretary to investigate whistleblower 
complaints filed under this section or any other method established by 
law.
``Sec. 733. Adverse actions against supervisory employees who commit 
              prohibited personnel actions relating to whistleblower 
              complaints
    ``(a) In General.--(1) In accordance with paragraph (2), the 
Secretary shall carry out the following adverse actions against 
supervisory employees whom the Secretary, an administrative 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 Department determines committed a 
prohibited personnel action described in subsection (c):
            ``(A) With respect to the first offense, an adverse action 
        that is not less than a 14-day suspension and not more than 
        removal.
            ``(B) With respect to the second offense, removal.
    ``(2)(A) Except as provided by subparagraph (B), and 
notwithstanding subsections (b) and (c) of section 7513 and section 
7543 of title 5, the provisions of subsections (d) and (e) of section 
713 of this title shall apply with respect to an adverse action carried 
out under paragraph (1).
    ``(B) An employee who is notified of being the subject of a 
proposed adverse action under paragraph (1) may not be given more than 
five days following such notification to provide evidence to dispute 
such proposed adverse action. If the employee does not provide any such 
evidence, or if the Secretary determines that such evidence is not 
sufficient to reverse the determination to propose the adverse action, 
the Secretary shall carry out the adverse action following such five-
day period.
    ``(b) Limitation on Other Adverse Actions.--With respect to a 
prohibited personnel action described in subsection (c), if the 
Secretary carries out an adverse action against a supervisory employee, 
the Secretary may carry out an additional adverse action under this 
section based on the same prohibited personnel action if the total 
severity of the adverse actions do not exceed the level specified in 
subsection (a).
    ``(c) Prohibited Personnel Action Described.--A prohibited 
personnel action described in this subsection is any of the following 
actions:
            ``(1) Taking or failing to take a personnel action in 
        violation of section 2302 of title 5 against an employee 
        relating to the employee--
                    ``(A) filing a whistleblower complaint in 
                accordance with section 732 of this title;
                    ``(B) filing a whistleblower complaint with the 
                Inspector General of the Department, the Special 
                Counsel, or Congress;
                    ``(C) providing information or participating as a 
                witness in an investigation of a whistleblower 
                complaint in accordance with section 732 or with the 
                Inspector General of the Department, the Special 
                Counsel, or Congress;
                    ``(D) participating in an audit or investigation by 
                the Comptroller General of the United States;
                    ``(E) refusing to perform an action that is 
                unlawful or prohibited by the Department; or
                    ``(F) engaging in communications that are related 
                to the duties of the position or are otherwise 
                protected.
            ``(2) Preventing or restricting an employee from making an 
        action described in any of subparagraphs (A) through (F) of 
        paragraph (1).
            ``(3) Conducting a peer review or opening a retaliatory 
        investigation relating to an activity of an employee that is 
        protected by section 2302 of title 5.
            ``(4) Requesting a contractor to carry out an action that 
        is prohibited by section 4705(b) or section 4712(a)(1) of title 
        41, as the case may be.
``Sec. 734. Evaluation criteria of supervisors and treatment of bonuses
    ``(a) Evaluation Criteria.--(1) In evaluating the performance of 
supervisors of the Department, the Secretary shall include the criteria 
described in paragraph (2).
    ``(2) The criteria described in this subsection are the following:
            ``(A) Whether the supervisor treats whistleblower 
        complaints in accordance with section 732.
            ``(B) Whether the appropriate deciding official, 
        performance review board, or performance review committee 
        determines that the supervisor was found to have committed a 
        prohibited personnel action described in section 733(b) by an 
        administrative judge, the Merit Systems Protection Board, the 
        Office of Special Counsel, an adjudicating body provided under 
        a union contract, a Federal judge, or, in the case of a 
        settlement of a whistleblower complaint (regardless of whether 
        any fault was assigned under such settlement), the Secretary.
    ``(b) Bonuses.--(1) The Secretary may not pay to a supervisor 
described in subsection (a)(2)(B) an award or bonus under this title or 
title 5, including under chapter 45 or 53 of such title, during the 
one-year period beginning on the date on which the determination was 
made under such subsection.
    ``(2) Notwithstanding any other provision of law, the Secretary 
shall issue an order directing a supervisor described in subsection 
(a)(2)(B) to repay the amount of any award or bonus paid under this 
title or title 5, including under chapter 45 or 53 of such title, if--
            ``(A) such award or bonus was paid for performance during a 
        period in which the supervisor committed a prohibited personnel 
        action as determined pursuant to such subsection (a)(2)(B);
            ``(B) the Secretary determines such repayment appropriate 
        pursuant to regulations prescribed by the Secretary to carry 
        out this section; and
            ``(C) the supervisor is afforded notice and an opportunity 
        for a hearing before making such repayment.
``Sec. 735. Training regarding whistleblower complaints
    ``(a) Training.--The Secretary, in coordination with the 
Whistleblower Protection Ombudsman designated under section 3(d)(1)(C) 
of the Inspector General Act of 1978 (5 U.S.C. App.), shall annually 
provide to each employee of the Department training regarding 
whistleblower complaints, including--
            ``(1) an explanation of each method established by law in 
        which an employee may file a whistleblower complaint;
            ``(2) an explanation of prohibited personnel actions 
        described by section 733(c) of this title;
            ``(3) with respect to supervisors, how to treat 
        whistleblower complaints in accordance with section 732 of this 
        title;
            ``(4) the right of the employee to petition Congress 
        regarding a whistleblower complaint in accordance with section 
        7211 of title 5;
            ``(5) an explanation that the employee may not be 
        prosecuted or reprised against for disclosing information to 
        Congress in instances where such disclosure is permitted by 
        law, including under sections 5701, 5705, and 7732 of this 
        title, under section 552a of title 5 (commonly referred to as 
        the Privacy Act), under chapter 93 of title 18, and pursuant to 
        regulations promulgated under section 264(c) of the Health 
        Insurance Portability and Accountability Act of 1996 (Public 
        Law 104-191);
            ``(6) an explanation of the language that is required to be 
        included in all nondisclosure policies, forms, and agreements 
        pursuant to section 115(a)(1) of the Whistleblower Protection 
        Enhancement Act of 2012 (5 U.S.C. 2302 note); and
            ``(7) the right of contractors to be protected from 
        reprisal for the disclosure of certain information under 
        section 4705 or 4712 of title 41.
    ``(b) Certification.--The Secretary shall annually provide training 
on merit system protection in a manner that the Special Counsel 
certifies as being satisfactory.
    ``(c) Publication.--(1) The Secretary shall publish on the Internet 
website of the Department, and display prominently at each facility of 
the Department, the rights of an employee to file a whistleblower 
complaint, including the information described in paragraphs (1) 
through (7) of subsection (a).
    ``(2) The Secretary shall publish on the Internet website of the 
Department, the whistleblower complaint form described in section 
732(g)(2).
``Sec. 736. Reports to Congress
    ``(a) Annual Reports.--The Secretary shall annually submit to the 
Committees on Veterans' Affairs of the House of Representatives and the 
Senate, the Committee on Oversight and Government Reform of the House 
of Representatives, and the Committee on Homeland Security and 
Governmental Affairs of the Senate a report that includes--
            ``(1) with respect to whistleblower complaints filed under 
        section 732 during the year covered by the report--
                    ``(A) the number of such complaints filed;
                    ``(B) the disposition of such complaints; and
                    ``(C) the ways in which the Secretary addressed 
                such complaints in which a positive determination was 
                made by a supervisor under subsection (b)(1) of such 
                section;
            ``(2) the number of whistleblower complaints filed during 
        the year covered by the report that are not included under 
        paragraph (1), including--
                    ``(A) the method in which such complaints were 
                filed;
                    ``(B) the disposition of such complaints; and
                    ``(C) the ways in which the Secretary addressed 
                such complaints; and
            ``(3) with respect to disclosures made by a contractor 
        under section 4705 or 4712 of title 41--
                    ``(A) the number of complaints relating to such 
                disclosures that were investigated by the Inspector 
                General of the Department of Veterans Affairs during 
                the year covered by the report;
                    ``(B) the disposition of such complaints; and
                    ``(C) the ways in which the Secretary addressed 
                such complaints.
    ``(b) Notice of Office of Special Counsel Determinations.--Not 
later than 30 days after the date on which the Secretary receives from 
the Special Counsel information relating to a whistleblower complaint 
pursuant to section 1213 of title 5, the Secretary shall notify the 
Committees on Veterans' Affairs of the House of Representatives and the 
Senate, the Committee on Oversight and Government Reform of the House 
of Representatives, and the Committee on Homeland Security and 
Governmental Affairs of the Senate of such information, including the 
determination made by the Special Counsel.''.
    (b) Conforming and Clerical Amendments.--
            (1) Conforming amendment.--Such chapter is further amended 
        by inserting before section 701 the following:

              ``SUBCHAPTER I--GENERAL EMPLOYEE MATTERS''.

            (2) Clerical amendments.--The table of sections at the 
        beginning of such chapter is amended--
                    (A) by inserting before the item relating to 
                section 701 the following new item:

               ``subchapter i--general employee matters'';

                and
                    (B) by adding at the end the following new items:

                ``subchapter ii--whistleblower complaints

``731. Whistleblower complaint defined.
``732. Treatment of whistleblower complaints.
``733. Adverse actions against supervisory employees who commit 
                            prohibited personnel actions relating to 
                            whistleblower complaints.
``734. Evaluation criteria of supervisors and treatment of bonuses.
``735. Training regarding whistleblower complaints.
``736. Reports to Congress.''.

SEC. 5. REFORM OF PERFORMANCE APPRAISAL SYSTEM FOR SENIOR EXECUTIVE 
              SERVICE EMPLOYEES OF THE DEPARTMENT OF VETERANS AFFAIRS.

    (a) Performance Appraisal System.--
            (1) In general.--Chapter 7 of title 38, United States Code, 
        is further amended by inserting after section 717, as added by 
        section 3, the following new section:
``Sec. 719. Senior executives: performance appraisal
    ``(a) Performance Appraisal System.--(1) The performance appraisal 
system for individuals employed in senior executive positions in the 
Department required by section 4312 of title 5 shall provide, in 
addition to the requirements of such section, for five annual summary 
ratings of levels of performance as follows:
            ``(A) One outstanding level.
            ``(B) One exceeds fully successful level.
            ``(C) One fully successful level.
            ``(D) One minimally satisfactory level.
            ``(E) One unsatisfactory level.
    ``(2) The following limitations apply to the rating of the 
performance of such individuals:
            ``(A) For any year, not more than 10 percent of such 
        individuals who receive a performance rating during that year 
        may receive the outstanding level under paragraph (1)(A).
            ``(B) For any year, not more than 20 percent of such 
        individuals who receive a performance rating during that year 
        may receive the exceeds fully successful level under paragraph 
        (1)(B).
    ``(3) In evaluating the performance of an individual under the 
performance appraisal system, the Secretary shall take into 
consideration--
            ``(A) any complaint or report (including any pending or 
        published report) submitted by the Inspector General of the 
        Department, the Comptroller General of the United States, the 
        Equal Employment Opportunity Commission, or any other 
        appropriate person or entity, related to any facility or 
        program managed by the individual, as determined by the 
        Secretary;
            ``(B) efforts made by the individual to maintain high 
        levels of satisfaction and commitment among the employees 
        supervised by the individual; and
            ``(C) the criteria described in section 734(a)(2) of this 
        title.
    ``(b) Change of Position.--(1) At least once every five years, the 
Secretary shall reassign each individual employed in a senior executive 
position to a position at a different location that does not include 
the supervision of the same personnel or programs. The Secretary shall 
make such reassignments on a rolling basis based on the date on which 
an individual was originally assigned to a position.
    ``(2) The Secretary may waive the requirement under paragraph (1) 
for any such individual, if the Secretary submits to the Committees on 
Veterans' Affairs of the Senate and House of Representatives notice of 
the waiver and an explanation of the reasons for the waiver.
    ``(c) Report.--Not later than March 1 of each year, the Secretary 
shall submit to the Committees on Veterans' Affairs and Homeland 
Security and Governmental Affairs of the Senate and the Committees on 
Veterans' Affairs and Oversight and Government Reform of the House of 
Representatives a report on the performance appraisal system of the 
Department under subsection (a). Each such report shall include, for 
the year preceding the year during which the report is submitted, each 
of the following:
            ``(1) All documentation concerning each of the following 
        for each individual employed in a senior executive position in 
        the Department:
                    ``(A) The initial performance appraisal.
                    ``(B) The higher level review, if requested.
                    ``(C) The recommendations of the performance review 
                board.
                    ``(D) The final summary review.
                    ``(E) The number of initial performance ratings 
                raised as a result of the recommendations of the 
                performance review board.
                    ``(F) The number of initial performance ratings 
                lowered as a result of the recommendations of the 
                performance review board.
                    ``(G) Any adverse action taken against any such 
                individual who receives a performance rating of less 
                than fully successful.
            ``(2) The review of the Inspector General of the Department 
        of the information described in subparagraphs (A) through (D) 
        of paragraph (1).
            ``(3) A summary of the documentation provided under 
        paragraph (1).
    ``(d) Definition of Senior Executive Position.--In this section, 
the term `senior executive position' has the meaning given that term in 
section 713(g)(3) of this title.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of such chapter, as amended by section 3, is further 
        amended by inserting after the item relating to section 717 the 
        following new item:

``719. Senior executives: performance appraisal.''.
            (3) Conforming amendment.--Section 4312(b) of title 5, 
        United States Code, is amended--
                    (A) in paragraph (2), by striking ``and'' at the 
                end;
                    (B) in paragraph (3), by striking the period at the 
                end and inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(4) that, in the case of the Department of Veterans 
        Affairs, the performance appraisal system meets the 
        requirements of section 719 of title 38.''.
    (b) Review of SES Management Training.--
            (1) Review.--Not later than 180 days after the date of the 
        enactment of this Act, the Secretary of Veterans Affairs shall 
        enter into a contract with a nongovernmental entity to review 
        the management training program for individuals employed in 
        senior executive positions (as such term is defined in section 
        713(g)(3) of title 38, United States Code) of the Department of 
        Veterans Affairs that is being provided as of the date of the 
        enactment of this Act. Such review shall include a comparison 
        of the training provided by the Department of Veterans Affairs 
        to the management training provided for senior executives of 
        other Federal departments and agencies and to the management 
        training provided to senior executives in the private sector. 
        The contract shall provide that the nongovernmental entity must 
        complete and submit to the Secretary a report containing the 
        findings and conclusions of the review by not later than 180 
        days after the date on which the Secretary and the 
        nongovernmental entity enter into the contract.
            (2) Report to congress.--Not later than 60 days after the 
        date on which the Secretary receives the report under paragraph 
        (1), the Secretary shall submit to the Committees on Veterans' 
        Affairs of the Senate and House of Representatives the report 
        together with a plan for carrying out the recommendations 
        contained in the report.

SEC. 6. REDUCTION OF BENEFITS FOR MEMBERS OF THE SENIOR EXECUTIVE 
              SERVICE WITHIN THE DEPARTMENT OF VETERANS AFFAIRS 
              CONVICTED OF CERTAIN CRIMES.

    (a) Reduction of Benefits.--
            (1) In general.--Chapter 7 of title 38, United States Code, 
        is further amended by inserting after section 719, as added by 
        section 5, the following new section:
``Sec. 721. Senior executives: reduction of benefits of individuals 
              convicted of certain crimes
    ``(a) Reduction of Annuity for Removed Employee.--The Secretary 
shall order that the covered service of an individual removed from a 
senior executive position under section 713 of this title shall not be 
taken into account for purposes of calculating an annuity with respect 
to such individual under chapter 83 or chapter 84 of title 5, if--
            ``(1) the individual is convicted of a felony that 
        influenced the individual's performance while employed in the 
        senior executive position; and
            ``(2) before such order is made, the individual is afforded 
        notice and an opportunity for a hearing conducted by another 
        department or agency of the Federal Government.
    ``(b) Reduction of Annuity for Retired Employee.--(1) The Secretary 
may order that the covered service of an individual who is subject to a 
removal or transfer action under section 713 of this title but who 
leaves employment at the Department prior to the issuance of a final 
decision with respect to such action shall not be taken into account 
for purposes of calculating an annuity with respect to such individual 
under chapter 83 or chapter 84 of title 5, if--
            ``(A) the individual is convicted of a felony that 
        influenced the individual's performance while employed in the 
        senior executive position; and
            ``(B) before such order is made, the individual is afforded 
        notice and an opportunity for a hearing conducted by another 
        department or agency of the Federal Government.
    ``(2) The Secretary shall make such an order not later than seven 
days after the date of the conclusion of a hearing referred to in 
paragraph (1)(B) that determines that such order is lawful.
    ``(c) Administrative Requirements.--(1) Not later than 30 days 
after the Secretary issues an order under subsection (a) or (b), the 
Director of the Office of Personnel Management shall recalculate the 
annuity of the individual.
    ``(2) A decision regarding whether the covered service of an 
individual shall be taken into account for purposes of calculating an 
annuity under subsection (a) or (b) is final and may not be reviewed by 
any department or agency or any court.
    ``(d) Lump-Sum Annuity Credit.--Any individual with respect to whom 
an annuity is reduced under subsection (a) or (b) shall be entitled to 
be paid so much of such individual's lump-sum credit as is attributable 
to the period of covered service.
    ``(e) Definitions.--In this section:
            ``(1) The term `covered service' means, with respect to an 
        individual subject to a removal or transfer action under 
        section 713 of this title, the period of service beginning on 
        the date that the Secretary determines under such section that 
        such individual engaged in activity that gave rise to such 
        action and ending on the date that such individual is removed 
        from the civil service or leaves employment at the Department 
        prior to the issuance of a final decision with respect to such 
        action, as the case may be.
            ``(2) The term `lump-sum credit' has the meaning given such 
        term in section 8331(8) or section 8401(19) of title 5, as the 
        case may be.
            ``(3) The term `senior executive position' has the meaning 
        given such term in section 713(g)(3) of this title.
            ``(4) The term `service' has the meaning given such term in 
        section 8331(12) or section 8401(26) of title 5, as the case 
        may be.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 7 of such title is amended by inserting 
        after the item relating to section 719, as added by section 5, 
        the following new item:

``721. Senior executives: reduction of benefits of individuals 
                            convicted of certain crimes.''.
    (b) Application.--Section 721 of title 38, United States Code, as 
added by subsection (a)(1), shall apply to any action of removal or 
transfer under section 713 of title 38, United States Code, commencing 
on or after the date of the enactment of this Act.

SEC. 7. LIMITATION ON ADMINISTRATIVE LEAVE FOR EMPLOYEES DEPARTMENT OF 
              VETERANS AFFAIRS.

    (a) Limitation.--
            (1) In general.--Chapter 7 of title 38, United States Code, 
        is further amended by inserting after section 721, as added by 
        section 6, the following new section:
``Sec. 723. Limitation on administrative leave
    ``(a) In General.--Except as provided in subsection (b), the 
Secretary may not place any covered individual on administrative leave, 
or any other type of paid non-duty status without charge to leave, for 
more than a total of 14 days during any 365-day period.
    ``(b) Waiver.--The Secretary may waive the limitation under 
subsection (a) and extend the administrative leave or other paid non-
duty status without charge to leave of a covered individual placed on 
such leave or status under subsection (a) if the Secretary submits to 
the Committees on Veterans' Affairs of the Senate and House of 
Representatives a detailed explanation of the reasons the individual 
was placed on administrative leave or other paid non-duty status 
without charge to leave and the reasons for the extension of such leave 
or status. Such explanation shall include the name of the covered 
individual, the location where the individual is employed, and the 
individual's job title.
    ``(c) Covered Individual.--In this subsection, the term `covered 
individual' means an employee of the Department--
            ``(1) who is subject to an investigation for purposes of 
        determining whether such individual should be subject to any 
        disciplinary action under this title or title 5; or
            ``(2) against whom any disciplinary action is proposed or 
        initiated under this title or title 5.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of such chapter, as amended by section 6, is further 
        amended by inserting after the item relating to section 721 the 
        following new item:

``723. Limitation on administrative leave.''.
    (b) Application.--Section 723 of title 38, United States Code, as 
added by subsection (a)(1), shall apply with respect to any 365-day 
period beginning on or after the date of enactment of this Act.

SEC. 8. TREATMENT OF CONGRESSIONAL TESTIMONY BY DEPARTMENT OF VETERANS 
              AFFAIRS EMPLOYEES AS OFFICIAL DUTY.

    (a) In General.--Chapter 7 of title 38, United States Code, is 
further amended by inserting after section 723, as added by section 7, 
the following new section:
``Sec. 725. Congressional testimony by employees: treatment as official 
              duty
    ``(a) Congressional Testimony.--An employee of the Department is 
performing official duty during the period with respect to which the 
employee is testifying in an official capacity in front of either House 
of Congress, a committee of either House of Congress, or a joint or 
select committee of Congress.
    ``(b) Travel Expenses.--The Secretary shall provide travel 
expenses, including per diem in lieu of subsistence, in accordance with 
applicable provisions under subchapter I of chapter 57 of title 5, to 
any employee of the Department of Veterans Affairs performing official 
duty described under subsection (a).''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter is further amended by inserting after the item relating to 
section 723, as added by section 7, the following new item:

``725. Congressional testimony by employees: treatment as official 
                            duty.''.

SEC. 9. LIMITATION ON AWARDS AND BONUSES PAID TO EMPLOYEES OF 
              DEPARTMENT OF VETERANS AFFAIRS.

    Section 705 of the Veterans Access, Choice, and Accountability Act 
of 2014 (Public Law 113-146; 38 U.S.C. 703 note) is amended to read as 
follows:

``SEC. 705. LIMITATION ON AWARDS AND BONUSES PAID TO EMPLOYEES OF 
              DEPARTMENT OF VETERANS AFFAIRS.

    ``The Secretary of Veterans Affairs shall ensure that the aggregate 
amount of awards and bonuses paid by the Secretary in a fiscal year 
under chapter 45 or 53 of title 5, United States Code, or any other 
awards or bonuses authorized under such title or title 38, United 
States Code, does not exceed the following amounts:
            ``(1) With respect to each of fiscal years 2015 through 
        2018, $300,000,000.
            ``(2) With respect to each of fiscal years 2019 through 
        2024, $360,000,000.''.

SEC. 10. COMPTROLLER GENERAL STUDY OF DEPARTMENT TIME AND SPACE USED 
              FOR LABOR ORGANIZATION ACTIVITY.

    (a) Study Required.--Not later than 180 days after the date of the 
enactment of this Act, the Comptroller General of the United States 
shall conduct a study on the amount of time spent by Department of 
Veterans Affairs employees carrying out organizing activities relating 
to labor organizations and the amount of space in Department facilities 
used for such activities. The study shall include a cost-benefit 
analysis of the use of such time and space for such activities.
    (b) Report to Congress.--Not later than 90 days after the 
completion of the study required under subsection (a), the Comptroller 
General shall submit to the Committees on Veterans' Affairs of the 
Senate and House of Representatives a report on the results of the 
study.
                                                 Union Calendar No. 170

114th CONGRESS

  1st Session

                               H. R. 1994

                      [Report No. 114-225, Part I]

_______________________________________________________________________

                                 A BILL

 To amend title 38, United States Code, to provide for the removal or 
 demotion of employees of the Department of Veterans Affairs based on 
           performance or misconduct, and for other purposes.

_______________________________________________________________________

                             July 23, 2015

   Reported from the Committee on Veterans' Affairs with an amendment

                             July 23, 2015

The Committee on Oversight and Government Reform discharged; committed 
   to the Committee of the Whole House on the State of the Union and 
                         ordered to be printed
```