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Trump signs bill to expand federal employee whistleblower protections

By Pamela Wolf, J.D.

On June 14, the White House announced that President Trump has signed into law the Follow the Rules Act, which would address what proponents see as a misinterpretation of the Whistleblower Protection Act by the Federal Circuit Court of Appeals in Rainey v. Merit Systems Protection Board . The bipartisan legislation, H.R. 657, cleared the House on May 1 and the Senate on May 25 by unanimous votes in both chambers.

Specifically, the bill amends the language in 5 U.S.C. Sec. 2302(b)(9) to clarify that under the Whistleblower Protection Act, an employee who refuses to obey an order that would require the employee to violate a law, or even a rule or regulation, is protected from retaliation.

In Rainey, the federal appeals court interpreted the scope of Section 2302(b)(9)(D) as confined to whistleblower protections for an employee’s refusal to obey an order that would violate a statute, but not a Federal Acquisition Regulation (FAR). The employee in the case had been relieved of his duties because he refused a supervisor’s order—to tell a contractor to rehire a terminated subcontractor—because he believed that carrying it out would have required him to violate a FAR by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the terms of the contract.

The employee argued that by removing him from his duties as a contracting officer representative after he “refuse[d] to obey an order that would require me to violate the law,” his agency employer had committed a prohibited personnel practice under the “right-to-disobey” set forth in 5 U.S.C. Sec. 2302(b)(9)(D).

“[It] may be that the statute should be extended to cover rules, regulations, and other sources of legal authority,” wrote the Federal Circuit. “If so, Congress is free to alter the scope of the statute. But we are not so free. Between the restrictive language chosen by Congress and the closely analogous decision of the Supreme Court in [Department of Homeland Security v. MacLean ], we are constrained to hold that the protection granted by section 2302(b)(9)(D) is limited to orders that are contrary to a statute, and does not encompass orders that are contrary to a regulation.”

The Follow the Rules Act makes the expansion suggested by the Federal Circuit.