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News from the Federal Circuit: New WPEA Protection Clarified

News from the Federal Circuit:  On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit issued its precedential decision in Rainey v. Merit Systems Protection Board, No. 2015-3234.  The Federal Circuit limited the application of a whistleblower protection statute.

At issue in Rainey was one of the provisions which received Independent Right of Action (IRA) appeal rights under the Whistleblower Protection Enhancement Act of 2012 (previously analyzed in this blog), 5 U.S.C. § 2302(b)(9)(D).  This statute states that agencies shall not "take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment [...] for  refusing to obey an order that would require the individual to violate a law."  Mr. Rainey filed a prohibited personnel practice claim under 5 U.S.C. § 2302(b)(9)(D), claiming that the Department of State had stripped him of his duties as a contracting officer representative in retaliation for Mr. Rainey's alleged refusal to take actions which Mr. Rainey alleged were violations of the Federal Acquisition Regulation (FAR).

The Federal Circuit based its holding on a statutory interpretation of 5 U.S.C. § 2302(b)(9)(D), specifically focusing on the word "law" in the phrase "order that would require the individual to violate a law."  Applying the Supreme Court's holding in the MacLean case (previously analyzed in this blog), the court held that "law" in 5 U.S.C. § 2302(b)(9)(D) was limited to statutes only, and excluded regulations, rules and court orders.  As a result, the Federal Circuit found against Mr. Rainey, as he had alleged that the reprisal was for refusal to violate a regulation (the FAR), not a statute. 

While Mr. Rainey's claims could hypothetically fall under one of the other, catch-all prohibited personnel practices (such as 5 U.S.C. § 2302(b)(10)), those claims have no IRA, limiting employees' options for challenging retaliation for adverse actions not otherwise appealable to the Merit Systems Protection Board to those few cases that the Office of Special Counsel might choose to prosecute.

The Federal Circuit's holding represents an ironic application of the pro-employee MacLean decision to narrowly construe the protections of 5 U.S.C. § 2302(b)(9)(D), with the effect of limiting a category of employee protection. 

If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan to request an initial consultation.

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