shaw bransford & roth case law update

Refusing Order to Violate Rule or Regulation is Not Protected Whistleblower Activity

Refusing to comply with an order that would require a federal employee to violate an agency rule or regulation is not protected whistleblower activity, the Merit Systems Protection Board (MSPB) recently held.

Timothy Rainey claimed protection under the Whistleblower Protection Act (WPA) and filed an Independent Right of Action (IRA) against his employer, the Department of State, with the MSPB, alleging the agency violated 5 U.S.C. § 2302(b)(9)(D), which protects federal employees from retaliation when they refuse to comply with an order that causes a violation of “a law.” Rainey specifically claimed State violated the WPA by stripping him of specific job duties and giving him a subpar performance evaluation in retaliation for disobeying an order that would have required him to violate a Federal Acquisition Regulation (FAR) and an internal agency policy limiting his authority as a contracting officer’s representative (COR).

State moved an administrative judge of the MPSB to dismiss Rainey’s IRA for lack of jurisdiction, contending that Rainey’s refusal to violate a regulation and an internal agency policy did not qualify as refusal to violate “a law” as required to invoke whistleblower protection under 5 U.S.C. § 2302(b)(9)(D). The administrative judge granted the motion and Rainey petitioned the full MSPB for review of that decision.

On review, the MSPB looked to congressional treatment of specific phrases within different sections of the WPA. The MSPB held that its jurisdiction to hear Rainey’s IRA rested upon whether Congress intended to protect employees who refused to violate agency rules and regulations, in addition to employees who refused to violate statutes, from retaliation.

The MSPB addressed the legal question by observing the WPA’s use of the phrase “law, rule, or regulation” in one set of prohibitions, and its use of only “law” in the statutory prohibition under which Rainey sought protection. Because the WPA used the more limited language protection federal employees for refusing orders that would result in a violation of “a law,” instead of for refusing orders that would result in a violation of “a law, rule or regulation,” the MSPB held that Congress did not intend the protection to cover violations of rules or regulations.

The MSPB thus held that the right-to-disobey provision at 5 U.S.C. § 2302(b)(9)(D) extends only to orders that require the individual to take action barred by statute, and does not extend to orders that require actions that would violate an agency rule or regulation, and that therefore it lacked jurisdiction to hear Rainey’s IRA.

Read the full case: Rainey v. Dep’t of State


This case law update was written by James P. Garay Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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