Feeling defiant? Good, because there is a growing body of Merit Systems Protection Board (MSPB) case law on the little known “right-to-disobey” rule from the Whistleblower Protection Act (WPA).
Finally, federal employees – and their lawyers – are now getting a better sense of what kind of orders can be disobeyed.
Obedience is the cornerstone of the efficiency of the service. It is so important that the government would rather have employees obey orders that would result in a bad decision – even ones that could result in the loss of millions of dollars – rather than cross a superior. In such situations, employees must “obey now, grieve later.” The exception to this rule pertains to situations where obedience would have resulted in “irreparable harm,” as the MSPB held in Cooke v. U.S. Postal Service (1995).
However, what the government does not like to point out is that “obey now, grieve later” relates to orders that would result in an employee violating a regulation or rule. But under 5 U.S.C. § 2302(b)(9)(D), agencies cannot “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” (emphasis added).
A May 2014 report by the Office of Special Counsel noted that “[t]here is no case law directly addressing the application of (b)(9)(D).” But since then, case law on this “right-to-disobey” rule has been growing, and the most significant decision came last September in Rainey v. Department of State (2015). In this case, the appellant, a program director, refused to obey an order that would have made him violate agency regulation and a training course that clarifies the limits to his authority. He claimed the agency violated Section 2302(b)(9)(D) by stripping him of his job duties and giving him a subpar performance rating in retaliation for this disobedience.
The appellant argued that the U.S. Supreme Court’s decision in Department of Homeland Security v. MacLean (2015) called for a broader interpretation of the word “law” under Section 2302 (b)(9)(D) that would incorporate agency rules and regulations, such as the one he would have violated had he obeyed the order. But the MSPB said that the Supreme Court in MacLean, which focused on a neighboring provision of the WPA, “determined that Congress’s use of the narrower word ‘law’ was deliberate.” This is the very same argument I made in my amicus curiae brief to the high court. The MSPB held, “we hold that the right-to-disobey provision at section 2302(b)(9)(D) extends only to orders that would require the individual to take an action barred by statute.”
So what type of orders can employees refuse to obey if they were to result in a violation of law? The case law is still thin, but here are a few examples:
- Orders to store classified information on insufficiently secure systems. Special Counsel ex. rel Hickey v. Department of Homeland Security (2013) (nonprecedential);
- Orders that would result in the violation of laws pertaining to the certification of travel vouchers. Davis v. Department of Defense (2006)
- Orders to make Social Security disability claim awards higher than what is appropriate. Krafsur v. Davenport (2013)
- Orders to backdate a signature on credit card transaction documents. Dick v. Department of Health and Human Services (2014). Note: the MSPB judge in this case “assumed” that the refusal to carry out such an order could be “construed as the…refusal to obey an order…to backdate his signature in violation of law” (emphasis added).
Disobeying an order, whether it would result in a violation of law or regulation, is a very serious matter. If an employee feels as though he must disobey, he or she should always consult first with an experienced federal employment law attorney, who could assess the situation and determine whether such an action would be protected. An attorney could also prepare an MSPB appeal or an OSC complaint in the event the employee is subjected to reprisal.
