“Follow the Rules Act” Shields Those Who Refuse to Violate Agency Regulations
The Government Accountability Project today praised Congressional action from last week that closed a technical, but significant, loophole in whistleblower law. On May 26, the Senate by unanimous consent followed House approval and passed the Follow the Rules Act. Nearly enacted last Congress, the legislation protects those who refuse orders to violate agency rules and regulations.
As part of the Whistleblower Protection Act (WPA) in 1989, Congress created 5 USC 2302(b)(9)(D), which made it a prohibited personnel practice to take a personnel action against an employee for refusing to violate the law. Ironically, however, the right was shrunken as a side effect of the Supreme Court’s 2016 whistleblower victory, Department of Homeland Security v. MacLean, when the Court refused to let agency rules and regulations cancel whistleblower rights that only can be restricted “by law,” explaining that in the WPA, “law” refers to statutes passed by Congress and signed by the president.
In a subsequent case, the U.S. Merit Systems Protection Board (MSPB) ruled against State Department employee Timothy Rainey for refusing to violate Federal Acquisition Regulations (FAR) on grounds that FAR is not a statute. The new bill, originally introduced by Rep. Sean Duffy (R.-WI) closes the loophole by adding “rule or regulation” after “law.”
GAP Legal Director Tom Devine stated:
While Congress may be deadlocked on most issues, the unanimous, bi-partisan mandate for whistleblower protection is alive and well. The bottom line for the Follow the Rules Act is that federal workers now have the legal right to refuse any illegal orders, not just those to violate a statute. This legislation follows unanimous Senate action last week to strengthen disciplinary accountability against bureaucratic bullies who retaliate against whistleblowers.