Federal Manager's Daily Report

The Senate has joined the House in passing HR-657, clarifying that protections against whistleblower retaliation apply to a federal employee who refuses to obey an order that would require the employee to violate a rule or regulation, not only a law.

Sponsors say that has been the understanding of Congress traditionally; however, a court decision last year held that those protections apply only if compliance would require breaking a law.

The case involved an employee who was relieved of duties as a contracting officer representative after refusing to follow an order to tell a contractor to rehire a terminated subcontractor. The employee believed that would have caused him to violate the Federal Acquisition Regulation by improperly interfering with personnel decisions of the contractor and requiring it to operate in conflict with the terms of the contract. On appeal, he cited a “right to disobey” provision of whistleblower law that protects employees from retaliation “for refusing to obey an order that would require the individual to violate a law.”

A hearing officer, the MSPB and then the Court of Appeals for the Federal Circuit however held that that protection applies only to orders that would require violating a law, and not a regulation such as the FAR. The court cited a 2015 Supreme Court holding that while employees do not enjoy whistleblower protections if they violate a law in making disclosures–such as by releasing classified information–those protections do apply if the employee violates only an agency rule. In both situations the whistleblower statute specifically refers to violations of laws, the appeals court said, and if Congress had meant to apply the policies to regulations as well, it could have done so–but didn’t.

The bill if signed into law would overturn the appeals court decision.