Strengthening Whistleblower Protections Still a Bipartisan Issue

Last week, Congress sent the Follow the Rules Act to the President’s desk for signature. The legislation closes a loophole in the Whistleblower Protection Act that was highlighted by a Merit Systems Protection Board (MSPB) ruling in Rainey v. State.

The case originated when Timothy Rainey, State Department Program Director for the Bureau of African Affairs, refused to force a contractor to rehire a previously discharged subcontractor. Subsequently, Rainey’s superiors gave him negative performance reviews and removed him from his duties as a contracting officer.

Rainey filed a complaint with the Office of Special Counsel (OSC) contending that executing the order would have violated Federal Acquisition Regulation § 1.602-2(d), which prohibits an agency from directing the decisions of a prime contractor. Rainey alleged that by requiring the contractor to rehire the previously fired subcontractor, he would be overstepping his authority as a contracting officer to direct the principal contractor’s affairs. While the FAR carries substantial weight as a regulation, it is not a law and is therefore not protected under the specific code that applied to Rainey’s case. After not receiving any favorable action with OSC, Rainey filed an Individual Right of Action with MSPB stating that the State Department’s retaliatory actions constituted a violation of the Whistleblower Protection Act’s (WPA) “right to disobey” provision.

The MSPB, in turn, handed down an unfavorable ruling that severely constrains the scope of the “right to disobey” provision. This decision stems from a plain-face reading of 5 U.S.C. § 2302 (b)(9)(D), which prohibits retaliatory personnel actions against employees “for refusing to obey an order that would require the individual to violate a law.” Notably absent from this particular provision are the words “rule” and “regulation,” which appear regularly throughout the rest of the statute. This interpretation of the word “law,” that does not include federal regulations, significantly narrows the coverage of the WPA.

Last year, Representative Sean Duffy (R-WI) first introduced an amendment to the FY 2017 Financial Services and General Government Appropriations Act in order to preclude the implementation of this harmful ruling in an individual case. Duffy shortly followed that amendment with the introduction of the Follow the Rules Act of 2016 and then the Follow the Rules Act of 2017. Both bills benefited from strong bipartisan support in the House, with the current legislation passing the Senate unanimously without amendment last week.

While there are more improvements necessary to strengthen whistleblower protections in this Congress, the passage of this bill closes a dangerous loophole, and we applaud Representative Duffy for spearheading this effort.