Rainey v. State Department: “Right-to-Disobey” (Precedential Decision)

Posted: 1:49 am EDT
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The following is a decision from the Merit Systems Protection Board, and considered a precedential decision,  one that can be cited as authoritative going forward.

Appellant: Timothy Allen Rainey
Agency: Department of State
Decision Number: 2015 MSPB 49
MSPB Docket No.: DC-1221-14-0898-W-1 Issuance
Date: August 6, 2015
Appeal Type: Individual Right of Action Action
Type: Retaliation

Whistleblower Protection Act Jurisdiction

The appellant filed an Individual Right of Action appeal alleging that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations and training certification procedures. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant’s claim of retaliation based on refusal to violate acquisition regulations and training procedures did not amount to a nonfrivolous allegation that he refused to obey an order that would require him to violate a law.

Holding: The Board affirmed the initial decision.

1. While employees are protected from whistleblower retaliation for refusing to obey an order that would require a violation of the law under 5 U.S.C. § 2302(b)(9)(D), the Supreme Court made clear in Department of Homeland Security v. MacLean,135 S. Ct. 913 (2015) that this protection does not extend to violations of an agency regulation or policy.

The MSPB assumed the employee appeals function of the Civil Service Commission and was given responsibilities to perform merit systems studies and to review the significant actions of OPM. State Department’s civil servants have appeals rights in the MSPB.  The employee also has a right to request review of the final decision by the United States Court of Appeals for the Federal Circuit.

Text of full ruling is here – 2015 MSPB 49 (pdf).

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2 responses

  1. So you can refuse to disobey a law but not a regulation, as in a FAM regulation. If you refuse to disobey a FAM reg, HR can “punish” you as it chooses? And not be subject to your claim that it is engaging in retaliatory actions?

    S

    Sent from my iPad

    >

    • That’s what it sounds like. The employee has 60 days, I believe, to appeal this decision. Don’t know if that’s going to happen. Also not clear to me how much of MSPB rulings are cited in FSGB rulings but since it’s cited as a precedent case, I thought it useful to post. Maybe AFSA lawyers have an idea.