Congress responds to MSPB ruling last year that narrowed “right to disobey.”
President Trump will soon decide whether to sign a bipartisan bill just passed by Congress that would clarify that whistleblower protection laws shield federal employees who disobey a superior’s directive if it is illegal or violates regulations.
The Follow the Rules Act (H.R. 657)— introduced by Reps. Sean Duffy, R-Wis., and Gerry Connolly, D-Va. — corrects what sponsors saw as a misinterpretation by the U.S. Court of Appeals for the Federal Circuit in the case of Rainey v. MSPB. That case involved State Department African Affairs program director Timothy Rainey, who received negative performance reviews and was removed from duty after he refused to force a contractor to re-engage a subcontractor who had previously been discharged.
He took his case to the Office of Special Counsel, claiming that the Federal Acquisition Regulation prevented him from following his boss’ order. Getting no satisfaction, he took his case to the Merit Systems Protection Board citing the 1989 Whistleblower Protection Act’s “right to disobey.”
But the MSPB and the appeals court ruling narrowed his rights, citing the fact that the FAR is a regulation and not a law.
Duffy introduced first an amendment and later a bill in 2016 to clarify the situation by extending “the prohibition against a person taking, failing to take, or threatening to take or fail to take a personnel action against any employee or applicant for employment for refusing to obey an order that would require the individual to violate a law to personnel actions against such an individual for refusing to obey an order that would violate a rule or regulation.”
His new version in the 115th Congress passed the House on May 1 and the Senate on May 25.
“The court ruling will take away whistleblowers’ protections when they stand up to bad actors in the federal workforce,” Duffy said. “In effect, this ruling will give permission to supervisors in positions of authority to force federal workers to violate the rules and regulations that Congress, through law, directs the agencies to implement.”
Connolly added in a statement, “As a member of the Oversight and Government Reform Committee, I rely on whistleblowers to help us with our oversight and reform work. Without them, rooting out mismanagement, abuse and corruption would be very difficult.”
The nonprofit Project on Government Oversight welcomed the bill as plugging a gap. “While there are more improvements necessary to strengthen whistleblower protections in this Congress,” wrote POGO policy counsel Liz Hempowicz, “the passage of this bill closes a dangerous loophole, and we applaud Representative Duffy for spearheading this effort.”