Holding the Government Accountable

Amendment to Protect State Dept. Whistleblower a First Step

Very few of the lessons we learn as children ever lose their relevance. We learn in grade school that we should follow just rules because, while we may not always like them, they ensure our mutual good. If someone told us to break the rules, it would be right to say no and mom might give us a pat on the back at the end of the day. If we refuse to break the rules at the State Department, we might receive a slap on the wrist and be removed from our duties. Doesn’t make sense? The Project On Government Oversight doesn’t think so and, thankfully, neither does Representative Sean Duffy.

Representative Duffy (R-WI) recently introduced an amendment to the FY 2017 Financial Services and General Government Appropriations Act in order to preclude the implementation of a harmful U.S. Court of Appeals ruling. The ruling would uphold a previous decision handed down by the Merit Systems Protection Board (MSPB) in Rainey v. State, which would curtail whistleblower protections in cases where the rules federal employees refuse to break are only rules or regulations created by agencies rather than laws created by Congress.

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 narrow reading of 5 U.S. Code § 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. A narrow interpretation of the word “law,” that does not include federal regulations, significantly reduces the scope of the WPA.

The MSPB relied on the Supreme Court decision in Department of Homeland Security v. MacLean, which ruled that the phrase “specifically prohibited by law,” as used in the WPA, does allow for the divulgence of information that is prohibited only by rule and not law. In the majority opinion, Chief Justice Roberts stated, “interpreting the word ‘law’ to include rules and regulation could defeat the purpose of the whistleblower statute.” Now, it appears that not including rules and regulations under the word law might have similarly dire consequences. The U.S. Court of Appeals upheld the MSPB ruling on June 7.

In essence, the precedent-setting ruling in Rainey would allow federal agencies to take disciplinary action against employees who refuse to break the rules. The amendment Duffy attached to the Financial Services and General Government Appropriations Act would only relate directly to the Rainey case, but it draws attention to a broader threat to whistleblower rights. Duffy serves on the House Committee on Financial Services and its Subcommittee on Oversight and Investigations.

The threat posed by Rainey is not an isolated incidence, and lawmakers have taken note of the numerous vulnerabilities within whistleblower law. Rainey and MacLean elucidate an important distinction between law and regulation, which highlights several inconsistencies in whistleblower protections. This discrepancy could be uniformly addressed by a provision in the Senate OSC Reauthorization Bill that expands protections under 5 U.S. Code § 2302 by protecting federal employees who refuse to break a rule or regulation. On June 21, the House unanimously passed its companion bill, the Thoroughly Investigating Retaliation Against Whistleblowers Act, introduced by Representative Rod Blum (R-IA). If the House and Senate are able to reconcile their drafts to include this change, we will have a law that prioritizes the ability of whistleblowers to expose waste, fraud, and abuse without fear of reprisal.