Federal Whistleblower Statute

Follow the Rules Act Protects Federal Employee Whistleblowers

In 2017, President Trump signed into law Follow the Rules Act, which prohibits an agency from taking a personnel action against an employee for refusing an order that would require the employee violate a law, rule or regulation. The Act overturns the Federal Circuit’s 2016 decision in Rainey v. Merit Sys. Prot. Bd., 2016 WL 3165617 (Fed. Cir. June 7, 2016).

Rainey held that Section 2302(b)(9) protects an employee’s refusal to obey an order that would require the employee to violate a statute, but does not protect an employee’s refusal to obey an order requiring the employee to violate a rule or regulation. The whistleblower in that case was relieved of his responsibilities as a contracting officer at the State Department when he refused to obey an order to direct a contractor to rehire a terminated subcontractor, an order that he believed would violate the Federal Acquisition Regulation. The MSPB denied Dr. Rainey’s claim because the Supreme Court held in Dep’t of Homeland Sec. v. MacLean that the term law” means a statute, not a rule or regulation.

The Follow the Rules Act provides critical protection for federal employees who are placed in the difficult position of either carrying out an order that would force them to violate the law or facing disciplinary action for insubordination.

Guide to the Whistleblower Protection Act

Whistleblower attorneys Eric Bachman and Jason Zuckerman, former senior officials at the U.S. Office of Special Counsel, have released a guide for federal employee whistleblowers titled The Whistleblower Protection Act: Empowering Federal Employees to Root Out Waste, Fraud and Abuse and is available for download by clicking here.The goal of the guide is to inform federal employees about the whistleblower rights and protections available under the Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act and the Follow the Rules Act.

Drawing on their experience enforcing the WPA at OSC and representing whistleblowers in private practice, the guide provides an overview of the WPA and offers practical tips for navigating some of the challenging issues that often arise in whistleblower cases. Topics covered include:

What Disclosures are Protected Under the Whistleblower Protection Act?
Does the Whistleblower Protection Act Protect Employees Who Exercise an Appeal or Grievance Right?
Prohibited Forms of Whistleblower Retaliation
Proving Knowledge of Protected Whistleblowing
Proving Causation
What is an Agency’s Burden to Avoid Liability Once the Whistleblower Has Proved Causation?
Seeking Relief from Retaliation
Election of Remedies
Can OSC Seek a Stay of a Personnel Action?
Damages or Remedies for Retaliation
Gag Orders and Non-Disclosure Agreements