S.Amdt. 2379

SA 2379. Mr. PERDUE submitted an amendment intended to be proposed to
amendment SA 2282 submitted by Mr. Inhofe (for himself and Mr. McCain)
and intended to be proposed to the bill H.R. 5515, to authorize
appropriations for fiscal year 2019 for military activities of the
Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for

[[Page S3305]]

other purposes; which was ordered to lie on the table; as follows:

At the end of title XI, add the following:

SEC. 1126. IMPROVED AUTHORITIES OF SECRETARIES OF MILITARY
DEPARTMENTS TO IMPROVE ACCOUNTABILITY OF SENIOR
EXECUTIVES.

(a) Authority.--(1) The Secretary of a military department
may, as provided in this section, reprimand or suspend,
involuntarily reassign, demote, or remove a covered
individual from a senior executive position at the military
department if the Secretary determines that the misconduct or
performance of the covered individual warrants such action.
(2) If the Secretary so removes such an individual, the
Secretary may remove the individual from the civil service
(as defined in section 2101 of title 5, United States Code).
(b) Rights and Procedures.--(1) A covered individual who is
the subject of an action under subsection (a) is entitled
to--
(A) advance notice of the action and a file containing all
evidence in support of the proposed action;
(B) be represented by an attorney or other representative
of the covered individual's choice; and
(C) grieve the action in accordance with an internal
grievance process that the Secretary of the applicable
military department shall establish for purposes of this
subsection.
(2)(A) The aggregate period for notice, response, and
decision on an action under subsection (a) may not exceed 15
business days.
(B) The period for the response of a covered individual to
a notice under paragraph (1)(A) of an action under subsection
(a) shall be 7 business days.
(C) A decision under this paragraph on an action under
subsection (a) shall be issued not later than 15 business
days after notice of the action is provided to the covered
individual under paragraph (1)(A). The decision shall be in
writing, and shall include the specific reasons therefor.
(3) The Secretary of the applicable military department
shall ensure that the grievance process established under
paragraph (1)(C) takes fewer than 21 days.
(4) A decision under paragraph (2) that is not grieved, and
a grievance decision under paragraph (3), shall be final and
conclusive.
(5) A covered individual adversely affected by a decision
under paragraph (2) that is not grieved, or by a grievance
decision under paragraph (3), may obtain judicial review of
such decision.
(6) In any case in which judicial review is sought under
paragraph (5), the court shall review the record and may set
aside any military department action found to be--
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with a provision of law;
(B) obtained without procedures required by a provision of
law having been followed; or
(C) unsupported by substantial evidence.
(c) Relation to Other Provisions of Law.--Section
3592(b)(1) of title 5, United States Code, and the procedures
under section 7543(b) of such title do not apply to an action
under subsection (a).
(d) Definitions.--In this section:
(1) The term ``covered individual'' means a career
appointee (as that term is defined in section 3132(a)(4) of
title 5, United States Code).
(2) The term ``military department'' has the meaning given
the term in section 101 of title 10, United States Code.
(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 ``senior executive position'' means with
respect to a career appointee (as that term is defined in
section 3132(a) of title 5, United States Code), a Senior
Executive Service position (as such term is defined in such
section).

SEC. 1127. IMPROVED AUTHORITIES OF SECRETARIES OF MILITARY
DEPARTMENTS TO IMPROVE ACCOUNTABILITY OF
EMPLOYEES.

(a) In General.--(1) The Secretary of a military department
may remove, demote, or suspend a covered individual who is an
employee of a military department if the Secretary determines
the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.
(2) If the Secretary so removes, demotes, or suspends such
a covered individual, the Secretary may--
(A) remove the covered individual from the civil service
(as defined in section 2101 of title 5, United States Code);
(B) demote the covered individual by means of a reduction
in grade for which the covered individual is qualified, that
the Secretary determines is appropriate, and that reduces the
annual rate of pay of the covered individual; or
(C) suspend the covered individual.
(b) Pay of Certain Demoted Individuals.--(1) Any covered
individual subject to a demotion under subsection (a)(2)
shall, beginning on the date of such demotion, receive the
annual rate of pay applicable to such grade.
(2)(A) A covered individual so demoted may not be placed on
administrative leave during the period during which an appeal
(if any) under this section is ongoing, and may only receive
pay if the covered individual reports for duty or is approved
to use accrued unused annual, sick, family medical, military,
or court leave.
(B) If a covered individual so demoted does not report for
duty or receive approval to use accrued unused leave, such
covered individual shall not receive pay or other benefits
pursuant to subsection (d)(5).
(c) Procedure.--(1)(A) The aggregate period for notice,
response, and final decision in a removal, demotion, or
suspension under this section may not exceed 15 business
days.
(B) The period for the response of a covered individual to
a notice of a proposed removal, demotion, or suspension under
this section shall be 7 business days.
(C) Paragraph (3) of subsection (b) of section 7513 of
title 5, United States Code, shall apply with respect to a
removal, demotion, or suspension under this section.
(D) The procedures in this subsection shall supersede any
collective bargaining agreement to the extent that such
agreement is inconsistent with such procedures.
(2) The Secretary of the applicable military department
shall issue a final decision with respect to a removal,
demotion, or suspension under this section not later than 15
business days after the Secretary provides notice, including
a file containing all the evidence in support of the proposed
action, to the covered individual of the removal, demotion,
or suspension. The decision shall be in writing and shall
include the specific reasons therefor.
(3) The procedures under chapter 43 of title 5, United
States Code, shall not apply to a removal, demotion, or
suspension under this section.
(4)(A) Subject to subparagraph (B) and subsection (d), any
removal or demotion under this section, and any suspension of
more than 14 days under this section, may be appealed to the
Merit Systems Protection Board, which shall refer such appeal
to an administrative judge pursuant to section 7701(b)(1) of
title 5, United States Code.
(B) An appeal under subparagraph (A) of a removal,
demotion, or suspension may only be made if such appeal is
made not later than 10 business days after the date of such
removal, demotion, or suspension.
(d) Expedited Review.--(1) Upon receipt of an appeal under
subsection (c)(4)(A), the administrative judge shall expedite
any such appeal under section 7701(b)(1) of title 5, United
States Code, and, in any such case, shall issue a final and
complete decision not later than 180 days after the date of
the appeal.
(2)(A) Notwithstanding section 7701(c)(1)(B) of title 5,
United States Code, the administrative judge shall uphold the
decision of the Secretary of the applicable military
department to remove, demote, or suspend an employee under
subsection (a) if the decision is supported by substantial
evidence.
(B) Notwithstanding title 5, United States Code, or any
other provision of law, if the decision of the Secretary of
the applicable military department is supported by
substantial evidence, the administrative judge shall not
mitigate the penalty prescribed by the Secretary.
(3)(A) The decision of the administrative judge under
paragraph (1) may be appealed to the Merit Systems Protection
Board.
(B) Notwithstanding section 7701(c)(1)(B) of title 5,
United States Code, the Merit Systems Protection Board shall
uphold the decision of the Secretary to remove, demote, or
suspend an employee under subsection (a) if the decision is
supported by substantial evidence.
(C) Notwithstanding title 5, United States Code, or any
other provision of law, if the decision of the Secretary of
the applicable military department is supported by
substantial evidence, the Merit Systems Protection Board
shall not mitigate the penalty prescribed by the Secretary.
(4) In any case in which the administrative judge cannot
issue a decision in accordance with the 180-day requirement
under paragraph (1), the Merit Systems Protection Board
shall, not later than 14 business days after the expiration
of the 180-day period, submit to the Committee on Armed
Services of the Senate and the Committee on Armed Services of
the House of Representatives a report that explains the
reasons why a decision was not issued in accordance with such
requirement.
(5) A decision of the Merit Systems Protection Board under
paragraph (3) may be appealed to the United States Court of
Appeals for the Federal Circuit pursuant to section 7703 of
title 5, United States Code, or to any court of appeals of
competent jurisdiction pursuant to subsection (b)(1)(B) of
such section.
(6) The Merit Systems Protection Board may not stay any
removal or demotion under this section, except as provided in
section 1214(b) of title 5, United States Code.
(7) During the period beginning on the date on which a
covered individual appeals a removal from the civil service
under subsection (c) and ending on the date that the United
States Court of Appeals for the Federal Circuit issues a
final decision on such appeal, such covered individual may
not receive any pay, awards, bonuses, incentives, allowances,
differentials, student loan repayments, special payments, or
benefits related to the employment of the individual by the
military department.
(8) To the maximum extent practicable, the Secretary of the
applicable military department shall provide to the Merit
Systems Protection Board such information and assistance as
may be necessary to ensure an appeal under this subsection is
expedited.
(9) If an employee prevails on appeal under this section,
the employee shall be entitled

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to backpay (as provided in section 5596 of title 5, United
States Code).
(10) If an employee who is subject to a collective
bargaining agreement chooses to grieve an action taken under
this section through a grievance procedure provided under the
collective bargaining agreement, the timelines and procedures
set forth in subsection (c) and this subsection shall apply.
(e) Whistleblower Protection.--(1) In the case of a covered
individual seeking corrective action (or on behalf of whom
corrective action is sought) from the Office of Special
Counsel (established by section 1211 of title 5, United
States Code) based on an alleged prohibited personnel
practice described in section 2302(b) of title 5, United
States Code, the Secretary of the applicable military
department may not remove, demote, or suspend such covered
individual under subsection (a) without the approval of the
Special Counsel under section 1214(f) of title 5, United
States Code.
(2) In the case of a covered individual who has made a
whistleblower disclosure to the Inspector General of the
Department of Defense, the Secretary of the applicable
military department may not remove, demote, or suspend such
covered individual under subsection (a) until--
(A) in the case in which the Inspector General of the
Department of Defense determines to refer the whistleblower
disclosure to an office or other investigative entity, a
final decision with respect to the whistleblower disclosure
has been made by such office or other investigative entity;
or
(B) in the case in which the Inspector General of the
Department of Defense determines not to the refer the
whistleblower disclosure under such section, the Inspector
General of the Department of Defense makes such
determination.
(f) Termination of Investigations by Office of Special
Counsel.--(1) 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 a military department after the Special
Counsel provides to the employee or former employee a written
statement of the reasons for the termination of the
investigation.
(2) Such statement may not be admissible as evidence in any
judicial or administrative proceeding without the consent of
such employee or former employee.
(g) Vacancies.--In the case of a covered individual who is
removed or demoted under subsection (a), to the maximum
extent feasible, the Secretary of the applicable military
department shall fill the vacancy arising as a result of such
removal or demotion.
(h) Definitions.--In this section:
(1) The term ``covered individual'' means an individual
occupying a position at a military department, but does not
include--
(A) a career appointee (as that term is defined in section
3132(a)(4) of title 5, United States Code);
(B) a Senior Executive Service position (as that term is
defined in section 3132(a)(2) of title 5, United States
Code);
(C) an individual who has not completed a probationary or
trial period; or
(D) a political appointee.
(2) The term ``military department'' has the meaning given
the term in section 101 of title 10, United States Code.
(3) The term ``suspend'' means the placing of an employee,
for disciplinary reasons, in a temporary status without
duties and pay for a period in excess of 14 days.
(4) The term ``grade'' has the meaning given such term in
section 7511(a) of title 5, United States Code.
(5) 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.
(6) The term ``political appointee'' means an individual
who is--
(A) employed in a position described under sections 5312
through 5316 of title 5, United States Code (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, United States Code; 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, Code of Federal Regulations, or successor
regulation.
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