A bill known as the “Follow the Rules Act” was signed into law by President Trump on June 14th. It is a very short bill that may prove to be important to some Federal employees who become whistleblowers.
The bill was introduced by Sean Duffy (R-WI). The purpose of the bill is to extend whistleblower protections for Federal employees who refuse to violate rules and regulations.
Violating a Rule or Regulation Instead of a Federal Law
If a Federal employee refuses to follow an order to violate a Federal law, the employee is protected from employment retaliation based on the provisions of the Whistleblower Protection Act of 1989. But, if a Federal employee disobeys an order to violate a regulation issued by the Federal government, rather than a law passed by Congress, the Federal employee is not protected. That, at least, used to be the case prior to passage of the Follow the Rules Act.
This bill was introduced after a Federal court decision concluded that the Whistleblower Protection Act only safeguards Federal workers against employment retaliation for refusing orders to violate Federal law. Those same safeguards were not applied to employees refusing to violate rules and regulations although the rules and regulations are theoretically based on an underlying law.
In his original press release when the bill was introduced last year, Congressman Duffy wrote:
An example of the kind of rules and regulations Federal employees should follow: Consider sanctions against North Korea, which Congress directed the President to promulgate in the form of Federal rules and regulations. Under current law, Federal employees who are told by their supervisor(s) to violate North Korean sanctions have no whistleblower protections. The Follow the Rules Act would fix this and should be considered by Congress.
Why The Distinction Became Significant
The distinction between disobeying a law instead of a rule or regulation was not an issue until last year.
An employee of the Department of State, Timothy Rainey, believed that carrying out an order he was given would require him to violate a Federal Acquisition Regulation. He thought he would be interfering with the personnel decisions of a prime contractor and he would be requiring the prime contractor to operate in conflict with the contract. Rainey refused to follow the order he had been given. He was subsequently relieved of his duties as a contracting officer’s representative.
Since the employee was refusing to violate a rule or regulation, instead of a Federal law, he was not protected. The US Court of Appeals upheld Rainey’s punishment in Rainey v. Merit Systems Protection Board in June 2016.
The Rainey decision was controversial because it relied upon a Supreme Court precedent in a way that many believed was an incorrect interpretation of the Supreme Court’s rationale. In the original case, Department of Homeland Security v. MacLean, the Supreme Court found in favor of an air marshal who worked for the Transportation Security Administration (TSA).
In that case, the Federal employee was fired by the agency for revealing to a reporter an operational agency decision canceling certain air marshal missions in the middle of a heightened high jacking alert. The Supreme Court overturned the removal. In the MacLean case, the government argued that a TSA regulation constituted a “law.” The Supreme Court disagreed and concluded: “…regulations do not qualify as ‘law’ under that statute…” and the statute itself “does not prohibit anything.”
The Follow the Rules Act was introduced to clarify or extend the original Whistleblower Protection Act. For Federal employees who become a verified whistleblower, it will no longer make a difference if the dispute with an agency involves a law or a rule or regulation issued by the federal government.