Federal Whistleblower's "Right to Disobey" Applies Only to Orders That Employee Take Action Barred by Statute, Not Regulation

Practical Law Legal Update w-002-5766 (Approx. 5 pages)

Federal Whistleblower's "Right to Disobey" Applies Only to Orders That Employee Take Action Barred by Statute, Not Regulation

by Practical Law Labor & Employment

Background

In 2013, Timothy Allen Rainey was working as a contracting officer representative in the US Department of State's Africa Contingency Operations Training and Assistance program. In October 2013, after Rainey refused to follow his supervisor's order to tell a contractor to rehire a terminated subcontractor, the supervisor terminated Rainey. Rainey filed a complaint with the US Office of Special Counsel (OSC) arguing that following the order would have required him to violate the Federal Acquisition Regulation (FAR). FAR provides that federal agencies may not improperly interfere with a prime contractor’s personnel decisions.

After not obtaining any relief from OSC, Rainey filed an Individual Right of Action appeal with the Merit Systems Protection Board (MSPB) alleging that his removal violated the WPA's right-to-disobey provision. While the hearing on Rainey's appeal was in progress, the US Supreme Court issued a decision holding that the word "law" in the WPA's right-to-disclose provision applied only to statutes, not rules or regulations (Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015)). Since the right-to-disobey provision contains language analogous to the right-to-disclose provision, and Rainey's appeal was based on his claim that following his supervisor's order would have required him to violate a regulation, the administrative judge held that the MSPB lacked jurisdiction over Rainey's appeal. After the full MSPB denied Rainey's petition for review, Rainey appealed to the Federal Circuit.

Outcome

The Federal Circuit affirmed the interpretation of the WPA's right-to-disobey provision, holding that:

The right-to-disobey provision applies to a federal whistleblower's refusal to follow a supervisor's order that violates a statute, and not to a refusal to follow an order that violates a regulation or a rule.
The MSPB lacked jurisdiction over Rainey's appeal.

The Federal Circuit noted that:

The WPA's right-to-disobey provision protects federal employees from being retaliated against "for refusing to obey an order that would require the individual to violate a law" (5 U.S.C. § 2302(b)(9)(D)).
The WPA's right-to-disclose provision provides that a federal employee may disclose information that the employee reasonably believes shows a violation of, among other things, "any law, rule, or regulation" if that disclosure "is not specifically prohibited by law" (5 U.S.C. § 2302(b)(8)(A)).
In MacLean, the US Supreme Court held that a federal employee's disclosure of information prohibited by an agency regulation was not a disclosure "specifically prohibited by law" under the right-to-disclose provision. This decision was based on several factors, including that:
- the WPA contained other provisions referring to violations of "any law, rule, or regulation," indicating that Congress did not intend for the term "law" to include rules or regulations;
- a previous US Supreme Court decision had rejected the argument that the term "laws" in one section of a statute meant the same thing as the phrase "law, rule, or regulation" in another part of the same statute (Department of the Treasury, IRS v. FLRA, 494 U.S. 922 (1990));
- the right-to-disclose provision referred to "any law, rule, or regulation" in one part but then referred to a disclosure "prohibited by law" in another part which suggested that Congress did not intend the term "law" to be as broad as "law, rule or regulation;" and
- broadly interpreting the term "law" in the right-to-disclose provision would allow agencies to protect themselves from whistleblower liability by promulgating regulations that prohibited whistleblowing.
(135 S. Ct. 913, at 920.)
The right-to-disobey provision, Paragraph (b)(9), comes right after the right-to-disclose provision, Paragraph (b)(8).
A subparagraph in the right-to-disobey provision uses the term "law, rule or regulation" before using the term "a law" (5 U.S.C. § 2302(b)(9)(A)).
The right-to-disobey and right-to-disclose provisions are closely analogous, and therefore the US Supreme Court's analysis of the right-to-disclose provision in MacLean is very persuasive authority for interpreting similar language in the right-to-disobey provision.

Practical Implications

The Federal Circuit's decision in Rainey interpreting the WPA's right-to-disobey provision heavily relies on the US Supreme Court’s decision in MacLean that interpreted the WPA's right-to-disclose provision. Both decisions use mainly textual bases for holding that the term "law" only includes statutes, not regulations or rules. Federal employees generally must follow the orders of their supervisors, even if they believe the order may require them to violate a regulation or agency policy. The proper procedure is to follow a supervisor's directive first, then challenge the order under other established procedures available to the employee. One of those procedures is to disclose to OSC that the supervisor has ordered the employee to violate a law, rule or regulation. However, a federal employee may not rely on the WPA to disobey an order, unless the order would require the employee to violate a statute.

Update: On June 14, 2017, the White House announced that President Donald J. Trump signed into law H.R. 657, the "Follow the Rules Act," which prohibits taking a personnel action against a Federal employee or an applicant for Federal employment for refusal to obey an order that would violate a rule or regulation.

Federal Whistleblower's "Right to Disobey" Applies Only to Orders That Employee Take Action Barred by Statute, Not Regulation | Practical Law