Lawmaker: Feds Shouldn't Be Punished for Refusing to Break Rules

A lawmaker looking to block a federal court ruling that allows federal agencies to punish employees who refuse to break rules and regulations introduced a measure this week that would block funding to implement the decision.

Rep. Sean Duffy, R-Wis., put forward his proposal as an amendment to the Fiscal 2017 Financial Service and General Government Appropriations Act to prevent the State Department from carrying out a ruling in Rainey v. Merit Systems Protection Board. The bill had been scheduled for a vote on the House floor this week but that was postponed until after the Fourth of July recess. 

The U.S. Court of Appeals earlier this month upheld a ruling originally determined by the Merit Systems Protection Board in which an employee argued the department improperly gave him a poor performance review and took away responsibilities when he refused to carry out a directive that went against federal rules. Instead, the court affirmed in a precedent-setting opinion that State was permitted to take those actions because rules and regulations do not qualify as federal statute.

The Whistleblower Protection Act protects a federal employee from retaliation “for refusing to obey an order that would require the individual to violate a law.” Timothy Rainey was instructed by a supervisor to compel a contractor to rehire a fired subcontractor, according to court documents. Such a request violates a provision of the Federal Acquisition Regulation, and Rainey refused to carry out the order.

Rainey’s supervisors later gave him a negative performance review and stripped him of his duties as a contracting officer for his failure to follow orders. Upon challenging the decision, MSPB ruled, and the U.S. Court of Appeals for the Federal Circuit affirmed, that the “right to disobey” provision of the whistleblower law applies only when an employee is asked to violate federal law specifically.

In other words, the court set a precedent that when a supervisor asks an employee to violate a federal rule or regulation, the employee must comply.

Duffy’s bill would apply only to the implementation the Rainey decision specifically, not to the broader precedent. An aide in the lawmaker’s office said the measure was a “first step” meant to bring attention to the issue. Duffy chairs the Financial Services Committee’s panel on oversight and investigations, and is worried the Rainey precedent could stymie the whistleblowers he relies on in that capacity.

The aide said that while the amendment is small in scope, it would help bring attention to the scenario in which an agency can compel employees to break rules and regulations not written in statute. The staffer cited regulations to carry out sanctions on Russia for its annexation of Ukrainian Crimea as an example of a non-statutory provision for which federal employees should not be punished for refusing to ignore.

In its original decision, MSPB cited a recent Supreme Court decision -- in which the high court ruled in favor of the employee -- to back up its ruling. In Department of Homeland Security v. MacLean, the Supreme Court found a Transportation Security Administration employee, Robert MacLean, was entitled to whistleblower protections because he had only violated a rule -- not a law -- when blowing the whistle on TSA’s decision to cut costs by reducing the number of air marshals on long-distance flights.

In the majority opinion of that case, however, Chief Justice John Roberts argued his interpretation would protect whistleblowers. He wrote that “interpreting the word ‘law’ to include rules and regulations could defeat the purpose of the whistleblower statute” and allow an agency to insulate itself from a key section of the act that protects against retaliation by simply writing a regulation prohibiting whistleblowing.

Duffy’s office expects the amendment to receive consideration when the financial services spending bill is taken up in July. 

Lawmakers have previously sought legislation to undermine precedents set in MSPB decisions. Recently, Sen. Jon Tester, D-Mont., and others pushed to undo a decision that removed due process appeal rights for federal employees deemed to be in national security “sensitive” positions. It is much rarer, however, for legislation to address the implementation of one particular ruling involving one employee.