scales of justice

Agencies Can Punish Employees Who Refuse to Break Rules

The U.S. Court of Appeals for the Federal Circuit has set a new precedent for the federal workforce by upholding a ruling from the Merit Systems Protection Board (MSPB) wherein a State Department employee was punished for refusing to carry out an assignment that would have gone against federal rules.

In Rainey v. State, Timothy Rainey, a State Department employee, argued the department inappropriately gave him a poor performance review and reduced his responsibilities after he refused to carry out a directive that went against federal rules. The Court, however, affirmed that State was permitted to take those actions because rules and regulations do not qualify as federal statute.

According to court documents, Rainey’s supervisor instructed him to require a contractor to rehire a fired subcontractor. This request would violate a provision of the Federal Acquisition Regulation, and Rainey refused to carry out the order. Later, his supervisors gave him a negative performance review and relieved him of his duties as a contracting officer due to his failure to comply with the request.

What was determined by the MSPB and then affirmed by the U.S. Court of Appeals was that the “right to disobey” provision in the Whistleblower Protection Act – which protects a federal employee from retaliation “for refusing to obey an order that would require the individual to violate a law” – only applies when an employee is asked to specifically violate federal law.

MSPB cited a Supreme Court decision in its ruling. The Supreme Court ruled in favor of the employee in the Department of Homeland Security v. MacLean, citing that the Transportation Security Administration (TSA) employee Robert MacLean was entitled to whistleblower protections because he had only violated a rule, not a law. MacLean blew the whistle on TSA for cutting the number of air marshals on long-distance flights to reduce costs.

While MacLean was reinstated in his job with back pay, the federal appeals court in Rainey v. State used the same rules versus laws argument and found in favor of the department.

Posted in General News

Tags: Supreme Court, MSPB, State Department, federal employees, federal employee removal, TSA, whistleblower, Whistleblower Protection Act

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