Whistleblower Protection Memo – How Useless Are You, Really?

Back in July, we blogged that State/OIG cited a State Department’s revocation of an employee’s security clearance in retaliation for whistleblowing in its Semi-Annual Report to Congress for October 2017-March 2018. State/OIG recommended that the whistleblower’s security clearance be reinstated (see State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing).  Retaliatory revocation is not an unheard of practice but we believed this is the first time it’s been reported publicly to the Congress.

Also in July, there was a joint OIG-State memo noting that “Whistleblowers perform a critically important service to the Department of State and to the public when they disclose fraud, waste, and abuse. The Department is committed to protecting all personnel against reprisal for whistleblowing.  This summer OIG told us that Congress enacted a new provision in 2017 that requires an agency to suspend for at least 3 days a supervisor found to have engaged in a prohibited personnel practice, such as whistleblower retaliation, and to propose removal of a supervisor for the second prohibited personnel practice. (see @StateDept’s Retaliatory Security Clearance Revocation Now Punishable By [INSERT Three Guesses].

In September, we note the time lapse since the official report was made to the Congress and wondered what action the State Department took in this case.  If the State Department believes, as the memo states that “Whistleblowers perform a critically important service to the Department of State and to the public” we really wanted to know what the State Department has done to the official/officials responsible for this retaliatory security clearance revocation.

We also want to see how solid is that commitment in protecting personnel against reprisal — not in words, but action.  So we’ve asked the State Department the following questions:

1) Has the security clearance been reinstated for the affected employee, and if so, when?

2) Has the senior official who engaged in this prohibited personnel practice been suspended per congressional mandate, and if so, when and for how long? and

3) Has the State Department proposed a removal of any supervisor/s for engaging in this prohibited personnel practice now or in the past?

As you can imagine, our friends over there are busy swaggering and to-date have not found the time to write back.

Folks, it’s been eight months since that annual report went to the U.S. Congress. If you’re not going to penalize the official or officials who revoked an employee’s security clearance out of retaliation, you were just wasting the letters of the alphabet and toner in that darn paper writing out a whistleblower protection memo.

And the Congress should be rightly pissed.

#

Advertisements

Rainey v. @StateDept: Attention Whistleblowers — Rules and Regs Are Not Laws

Posted: 2:14 am ET
[twitter-follow screen_name=’Diplopundit’ ]

 

Last year, we blogged about a decision by the Merit Systems Protection Board concerning a Whistleblower Protection Act case where a State Department employee, Timothy Allen Rainey, alleged 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 (FAR) and training certification procedures. See Rainey v. State Department: “Right-to-Disobey” (Precedential Decision).

On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board ruling in a precedent-setting opinion — agreeing that the term “a law” in section 2302(b)(9)(D) refers only to a statute, and not to a rule or regulation.

In this IRA appeal, Rainey claimed that his duties as contracting officer had been taken away from him because he refused to obey his supervisor’s order to tell a contractor to rehire a terminated subcontractor.  Rainey contended that he refused to obey the order because dong so would have required him to violate a provision of the Federal Acquisition Regulation.  The issue was whether the right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C. §  2302(b)(9)(D), which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” applied to the appellant, who alleged that he had suffered retaliation for refusing to obey an order that would require him to violate a regulation.  The Board, relying on a recent Supreme Court decision, Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015), which held that the word “law” in the “right-to-disclose” provision of the WPA, 5 U.S.C. §  2302(b)(8), refers only to statute, and not to a rule or regulation, ruled that the term “a law” in section 2302(b)(9)(D) should also be interpreted to refer to a statute, and not to a rule or regulation.  122 M.S.P.R. 592 (2015).

The Court writes:

Dr. Rainey makes a final argument that the FAR is a particularly important regulation that has the full force and effect of law and therefore should be regarded as “a law” within the meaning of section 2302(b)(9)(D) even if other regulations do not qualify as “laws” for purposes of that statute. The first problem with that argument is that substantive agency regulations that are promulgated pursuant to statutory authority typically have the “force and effect of law,” see Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979), so that feature does not distinguish the FAR from other more quotidian legislative rules. The second problem with the argument is that, as noted, there is nothing in the section 2302(b)(9) that even hints at a distinction between important regulations and less important regulations; to the contrary, the statute distinguishes between “a law” and “law, rule, or regulation,” and the FAR clearly falls on the “regulation” side of that divide.

What now?  Court says “Congress is free to alter the scope of the statute”:

Dr. Rainey’s arguments are heavy on policy reasons why Congress likely would not have wanted to confine the scope of section 2302(b)(9)(D) to statutes. Those policy considerations are not without force, and it may be that the statute should be extended to cover rules, regulations, and other sources of legal authority. 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 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.

This is bad.  So basically State Department employees will not be able to get whistleblower protection for refusing orders that violate rules or regulations in the Foreign Affairs Manual/Foreign Affairs Handbook.  If a supervisor orders an employee to break the rules/regs in the FAM/FAH, the employee must comply or be subjected to disciplinary action/s?  How nutty is that?

Click here to contact your congressional representatives.

Read the ruling below or read it via mspb.gov here (PDF). 

 

#