[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 571 Introduced in House (IH)]
114th CONGRESS
1st Session
H. R. 571
To amend title 38, United States Code, to improve the treatment of
whistleblower complaints by the Secretary of Veterans Affairs, and for
other purposes.
_______________________________________________________________________
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.
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 ``Veterans Affairs Retaliation
Prevention Act of 2015''.
SEC. 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:
``SUBCHAPTER II--WHISTLEBLOWER COMPLAINTS
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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.
``Sec. 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).
``Sec. 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:
``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 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.''.
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