I 114th CONGRESS 1st Session H. R. 571 IN THE HOUSE OF REPRESENTATIVES January 27, 2015 Mr. Miller of Florida 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 A BILL To amend title 38, United States Code, to improve the treatment of whistleblower complaints by the Secretary of Veterans Affairs, and for other purposes.

1. Short title This Act may be cited as the Veterans Affairs Retaliation Prevention Act of 2015 . 2. Treatment of whistleblower complaints in Department of Veterans Affairs (a) In general Chapter 7 of title 38, United States Code, is amended by adding at the end the following new subchapter: II Whistleblower complaints 721. 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. 722. 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 with a supervisor of the employee. (2) 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 two 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 Office of Accountability Review of the Department 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 Office of Accountability Review. (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 a supervisor does not make a timely determination under subsection (b)(1) regarding a whistleblower complaint, or if the employee who made the complaint determines that the supervisor did not adequately address the complaint pursuant to subsection (c), the employee may file such whistleblower complaint 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). (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. 723. Adverse actions against 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 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 (d): (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) Fees (1) In addition to any adverse action carried out under subsection (a), to recoup costs borne by the Federal Government by reason of prohibited personnel actions described in subsection (d), the Secretary shall charge a fee to each employee who is found to have committed such a prohibited personnel action 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. The Secretary shall afford such an employee notice and an opportunity for a hearing before charging such fee. (2) In carrying out paragraph (1), the Secretary shall prescribe a schedule of fees that takes into account the cost to the Federal Government of the prohibited personnel action committed by an employee described in such paragraph, including such costs paid by the Federal Government pursuant to an order to pay attorney fees described in section 1204(m) of title 5 or other similar order of an administrative judge or Federal judge. (c) Limitation on other adverse actions With respect to a prohibited personnel action described in subsection (d), if the Secretary carries out an adverse action against an employee or charges a fee to an employee under a provision of law other than this section, the Secretary may carry out an additional adverse action or charge an additional fee 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) and the total fees charged do not exceed the amount prescribed under subsection (b)(2). (d) 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 722 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 722 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) Interfering with an employee 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. 724. 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 722. (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 723(c) 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. 725. 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 723(d) of this title; (3) with respect to supervisors, how to treat whistleblower complaints in accordance with section 722 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 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 and to petition Congress regarding a whistleblower complaint as described in paragraphs (3) and (4) of subsection (a). 726. 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 a report that includes— (1) with respect to whistleblower complaints filed under section 722 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 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: 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 after the item relating to section 713 the following new items: Subchapter II—Whistleblower complaints 721. Whistleblower complaint defined. 722. Treatment of whistleblower complaints. 723. Adverse actions against employees who commit prohibited personnel actions relating to whistleblower complaints. 724. Evaluation criteria of supervisors and treatment of bonuses. 725. Training regarding whistleblower complaints. 726. Reports to Congress. .