Whistleblower lawyer Jason Zuckerman was quoted in an article in the National Law Journal titled “Law and Order Face Court Test in Whistleblower’s Case.” The article discusses Rainey v Department of State, a Whistleblower Protection Act case pending before the Federal Circuit about the scope of whistleblower protection for federal employees that refuse to obey orders that would require them to violate a law. The MSPB decision on appeal held that this right-to-disobey provision in the Whistleblower Protection Act extends only to orders that would require the individual to take an action barred by statute. Rainey is urging the Federal Circuit to hold that the right-to-discovery provision protects the refusal to take an action barred by statute, rule, or regulation.
The MSPB’s decision limiting the scope of the right-to-disobey provision relied mainly on the Supreme Court’s ruling in MacLean, which held that the narrow exception in the WPA for disclosures that are “specifically prohibited by law” is limited to statutes. Zuckerman noted that Congress intended to exclude agency regulations from the exception to WPA protected conduct because it “was concerned that including the terms ‘rule’ or ‘regulation’ in that narrow exception would enable agencies to issue rules that would trump whistleblower protections for federal employees,” Zuckerman told the NLJ. “All an agency would have to do is issue a rule that would prohibit its employees from blowing the whistle on certain issues.”
From a policy perspective, it makes sense to construe the term “law” in the right-to-disobey provision broadly and read it narrowly in the right-to-disclose provision. There is well established precedent for construing remedial legislation broadly. And to effectuate Congress’ intent to provide robust protection to whistleblowers, it is critical for the Federal Circuit to reverse the MSPB’s decision. Limiting the term “law” in the right-to-disobey provision to statutes would likely exclude from the ambit of the WPA most of the incidents where a federal employee refuses to carry out an unlawful order.
Washington DC whistleblower law firm Zuckerman Law represents whistleblowers nationwide under federal whistleblower protection laws, including the Whistleblower Protection Act, the Sarbanes-Oxley whistleblower law, and the False Claims Act and NDAA anti-retaliation provisions. To schedule a free preliminary consultation, click here or call us at 202-262-8959.
