Merit Systems Protection Board Reauthorization Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 1922 To reauthorize and modify the authority of the Merit Systems Protection Board, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MARCH 16, 2021 Mr. HICE of Georgia (for himself, Mr. COMER, Mr. SESSIONS, Mr. LATURNER, Mr. C. SCOTT FRANKLIN of Florida, and Mr. CLYDE) intro- duced the following bill; which was referred to the Committee on Over- sight 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Merit Systems Protection Board Reauthorization Act of 5 2021’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 1922 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 Protec- tion 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. SEC. 2. REAUTHORIZE APPROPRIATIONS FOR MERIT SYS- 1 TEMS PROTECTION BOARD. 2 (a) IN GENERAL.—Paragraph (1) of section 8(a) of 3 the Whistleblower Protection Act of 1989 (Public Law 4 101–12; 5 U.S.C. 5509 note) is amended to read as fol- 5 lows: 6 ‘‘(1) for each of fiscal years 2022, 2023, 2024, 7 2025, and 2026— 8 ‘‘(A) $44,490,000 to carry out subchapter 9 I of chapter 12 of title 5, United States Code 10 (as amended by this Act); and 11 ‘‘(B) not to exceed $2,345,000, to be 12 transferred from the Civil Service Retirement 13 and Disability Fund in amounts determined by 14 the Merit Systems Protection Board, for admin- 15 istrative expenses to adjudicate retirement ap- 16 peals; and’’. 17 (b) EFFECTIVE DATE.—This section shall take effect 18 on October 1, 2021. 19 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 1922 IH SEC. 3. FILING FEE FOR MERIT SYSTEMS PROTECTION 1 BOARD CLAIMS AND APPEALS. 2 (a) IN GENERAL.—Section 1204 of title 5, United 3 States Code, is amended by adding at the end the fol- 4 lowing: 5 ‘‘(o)(1) The Board shall establish and collect a filing 6 fee to be paid by any individual filing a claim or appeal 7 with the Board under this title, or under any other law, 8 rule, or regulation, consistent with the requirements of 9 this subsection. 10 ‘‘(2) The filing fee established under paragraph (1) 11 may— 12 ‘‘(A) not exceed the amount that is 50 percent 13 of the fee required for filing a civil action in a 14 United States district court; 15 ‘‘(B) be adjusted from time to time as the 16 Board considers appropriate; and 17 ‘‘(C) upon request of the individual filing the 18 claim or appeal, be waived by the Board if the 19 Board determines the fee would create undue hard- 20 ship. 21 ‘‘(3) A filing fee shall not be required with respect 22 to any action— 23 ‘‘(A) brought by the Special Counsel under sec- 24 tion 1214, 1215, or 1216; or 25 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 1922 IH ‘‘(B) taken against an administrative law judge 1 under section 7521. 2 ‘‘(4) A filing fee paid by an individual for an appeal 3 or claim before the Board shall cover any subsequent filing 4 by the individual with the Board during the litigation of 5 that appeal or claim. Such fee shall be returned to the 6 individual if the individual is the prevailing party.’’. 7 (b) DEADLINE.—The Merit Systems Protection 8 Board shall establish and collect the filing fee required 9 under subsection (o) of section 1204 of title 5, United 10 States Code, as added by subsection (a), not later than 11 1 year after the date of the enactment of this Act. 12 (c) APPLICATION.—The fee required under such sub- 13 section (o) shall apply to any claim or appeal filed with 14 the Merit Systems Protection Board after the date the fee 15 is established pursuant to subsection (b). 16 SEC. 4. MODIFICATION TO PROCEDURES AND AUTHORITY 17 OF THE MERIT SYSTEMS PROTECTION 18 BOARD. 19 (a) SUMMARY JUDGMENT.—Section 7701 of title 5, 20 United States Code, is amended— 21 (1) in subsection (a)(1), by inserting ‘‘, except 22 as provided in subsection (b)’’ after ‘‘kept’’; and 23 (2) in subsection (b)(1)— 24 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 1922 IH (A) by striking ‘‘The Board may’’ and in- 1 serting ‘‘(A) The Board may’’; 2 (B) by striking the second and third sen- 3 tences; and 4 (C) by adding at the end the following: 5 ‘‘(B) The Board, an administrative law judge ap- 6 pointed by the Board under section 3105, and any officer 7 or employee of the Board designated by the Board (as the 8 case may be) shall make a decision after receipt of the 9 written representations of the parties to the appeal and 10 after opportunity for a hearing under subsection (a)(1) of 11 this section, except as provided under subparagraph (C). 12 ‘‘(C) The Board, an administrative law judge ap- 13 pointed by the Board under section 3105, and any officer 14 or employee of the Board designated by the Board (as the 15 case may be) may, with respect to any party, grant a mo- 16 tion for summary judgment. Any hearing under subsection 17 (a)(1) of this section shall be limited to the issues remain- 18 ing in the case, or, if applicable, a decision may be issued 19 without holding a hearing. 20 ‘‘(D) A copy of the decision under subparagraph (B) 21 or (C) shall be furnished to each party to the appeal and 22 to the Office of Personnel Management.’’. 23 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 1922 IH (b) LIMIT ON MITIGATION.—Paragraph (3) of section 1 7701(b) of title 5, United States Code, is amended to read 2 as follows: 3 ‘‘(3) With respect to an appeal from a performance 4 or conduct-based adverse action under subchapter II or 5 V of chapter 75, the Board may not mitigate the personnel 6 action involved unless the action is so disproportionate as 7 to be wholly without justification.’’. 8 (c) EVIDENTIARY BURDEN.—Paragraph (1) of sec- 9 tion 7701(c) of title 5, United States Code, is amended 10 to read as follows: 11 ‘‘(1) Subject to paragraph (2), the decision of the 12 agency shall be sustained under subsection (b) only if the 13 agency’s decision is supported by substantial evidence.’’. 14 (d) EFFECTIVE DATE; APPLICATION.— 15 (1) EFFECTIVE DATE.—The amendments made 16 by this section shall take effect on the date that is 17 90 days after the date of the enactment of this Act. 18 (2) APPLICATION.—The amendments made by 19 this section shall apply with respect to any appeal 20 filed under section 7701 of title 5, United States 21 Code, on or after the effective date in paragraph (1). 22 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 1922 IH SEC. 5. LIMITATION ON FURLOUGH APPEALS TO THE 1 MERIT SYSTEMS PROTECTION BOARD. 2 (a) IN GENERAL.—Section 3595a of title 5, United 3 States Code, is amended— 4 (1) by striking subsection (a) and inserting the 5 following: 6 ‘‘(a) For the purposes of this section— 7 ‘‘(1) the term ‘furlough’ means the placement 8 of a senior executive in a temporary status in which 9 the senior executive has no duties and is not paid 10 when the placement in such status is by reason of 11 insufficient work or funds or for other nondiscipli- 12 nary reasons; and 13 ‘‘(2) the term ‘emergency furlough’ has the 14 meaning given that term in section 7501(3).’’; 15 (2) in subsection (b), by adding after the period 16 at the end the following: ‘‘Such regulations shall 17 provide for procedures for emergency furloughs for 18 career appointees, consistent with the procedures 19 promulgated by the Office under section 7504(b).’’; 20 and 21 (3) by striking subsection (c) and inserting the 22 following: 23 ‘‘(c) A career appointee who is furloughed in excess 24 of 14 days is entitled to appeal to the Merit Systems Pro- 25 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 1922 IH tection Board under section 7701. The previous sentence 1 shall not apply to any emergency furlough.’’. 2 (b) APPLICATION.—The amendments made by sub- 3 section (a) shall apply to any furlough occurring on or 4 after the date that is 90 days after the date of the enact- 5 ment of this Act. 6 SEC. 6. REAPPOINTMENT OF MERIT SYSTEMS PROTECTION 7 BOARD MEMBERS. 8 Subsection (c) of section 1202 of title 5, United 9 States Code, is amended— 10 (1) by striking ‘‘may not be reappointed to any 11 following term but’’; and 12 (2) by inserting before the period at the end the 13 following: ‘‘, unless the member is reappointed’’. 14 SEC. 7. AMENDMENTS TO DEPARTMENT OF VETERANS AF- 15 FAIRS ACCOUNTABILITY AND WHISTLE- 16 BLOWER PROTECTION ACT OF 2017. 17 (a) IN GENERAL.—Section 714 of title 38, United 18 States Code, is amended— 19 (1) in subsection (c)(4)(A), by striking ‘‘, which 20 shall refer such appeal to an administrative judge 21 pursuant to section 7701(b)(1) of title 5’’; and 22 (2) in subsection (d)— 23 VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 1922 IH (A) by striking ‘‘the administrative judge’’ 1 in each place it appears and inserting ‘‘the 2 Merit Systems Protection Board’’; 3 (B) by striking paragraph (3); 4 (C) by redesignating paragraphs (4) 5 through (10) as paragraphs (3) through (9), re- 6 spectively; and 7 (D) in paragraph (4), as redesignated by 8 subparagraph (C), by striking ‘‘paragraph (3)’’ 9 and inserting ‘‘paragraph (1)’’. 10 (b) APPLICATION.—The amendments made by sub- 11 section (a) shall apply to any appeal made under section 12 714(c)(4)(A) of title 38, United States Code, after the 13 date of the enactment of this Act. 14 Æ VerDate Sep 11 2014 21:16 May 11, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H1922.IH H1922 pamtmann on DSKBC07HB2PROD with BILLS