News from Congress: On June 14, 2017, the President signed into law H.R. 657 as new Pub.L. 115-40. the so-called "Follow the Rules Act." The statute was designed to legislatively overrule the decision of the U.S. Court of Appeals for the Federal Circuit in Rainey.
As previously analyzed in this blog, the Federal Circuit in 2016 issued a decision giving a narrow reading to one of the (b)(9) prohibited personnel practice claims. At the time of Rainey, 5 U.S.C. § 2302(b)(9)(D) provided 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."
The Federal Circuit interpreted the word "law" in the phrase "order that would require the individual to violate a law" as solely indicating statutory law--meaning that (b)(9)(D) would give no protection to employees who refused to obey an order that would require the employee to violate a rule or regulation. The Committee Report for H.R. 657 cited Rainey and noted that the purpose of H.R. 657 was "clarif[y] that the prohibition against certain personnel actions includes personnel actions taken against any employee or applicant for employment for refusing to obey an order that would violate a rule or regulation" in order to clearly implement "Congress's original intent with respect to this provision of the Whistleblower Protection Act of 1989."
As a result of H.R. 657, (b)(9)(D) now protects employees "refusing to obey an order that would require the individual to violate a law, rule or regulation." This amendment negates the effects of Rainey on federal employees going forward. The legislative overruling of Rainey was unusually fast for Washington, having only occurred just over a year after Rainey was issued--and potentially might have occurred even faster without the intervening elections and change in Administration.
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.