House Financial Services Committee member Rep. Sean Duffy, R-Wis.

House Financial Services Committee member Rep. Sean Duffy, R-Wis. AP Photo/Susan Walsh

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

Measure would block the implementation of a recent federal court decision.

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.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.