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Does the Whistleblower Protection Act Prohibit Retaliation for Refusing to Obey an Order Requiring a Violation of Law?

 

The Whistleblower Protection Act prohibits an employer from taking a personnel action against an employee for refusing an order that would require the employee violate a law, rule or regulation (5 U.S.C. § 2302(b)(9)(D)).

The Follow the Rules Act enacted in 2017 prohibits an agency from taking a personnel action against an employee for refusing an order that would require the employee violate a law, rule or regulation.  The Act overturns the Federal Circuit’s 2016 decision in Rainey v. Merit Sys. Prot. Bd., 2016 WL 3165617 (Fed. Cir. June 7, 2016).   Rainey held that Section 2302(b)(9) protects an employee’s refusal to obey an order that would require the employee to violate a statute, but does not protect an employee’s refusal to obey an order requiring the employee to violate a rule or regulation. The whistleblower in that case was relieved of his responsibilities as a contracting officer at the State Department when he refused to obey an order to direct a contractor to rehire a terminated subcontractor, an order that he believed would violate the Federal Acquisition Regulation.  The MSPB denied Dr. Rainey’s claim because the Supreme Court held in Dep’t of Homeland Sec. v. MacLean that the term law” means a statute, not a rule or regulation. 
 
The Follow the Rules Act provides critical protection for federal employees who are placed in the difficult position of either carrying out an order that would force them to violate the law or facing disciplinary action for insubordination.

Guide to the Whistleblower Protection Act

Whistleblower attorneys Eric Bachman and Jason Zuckerman, former senior officials at the U.S. Office of Special Counsel, have released a guide for federal employee whistleblowers titled The Whistleblower Protection Act: Empowering Federal Employees to Root Out Waste, Fraud and Abuse and is available for download by clicking here. whistleblower protection act The goal of the guide is to inform federal employees about the whistleblower rights and protections available under the Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act and the Follow the Rules Act.

Drawing on their experience enforcing the WPA at OSC and representing whistleblowers in private practice,  the guide provides an overview of the WPA and offers practical tips for navigating some of the challenging issues that often arise in whistleblower cases.  Topics covered include:

  • What Disclosures are Protected Under the Whistleblower Protection Act?
  • Does the Whistleblower Protection Act Protect Employees Who Exercise an Appeal or Grievance Right?
  • Prohibited Forms of Whistleblower Retaliation
  • Proving Knowledge of Protected Whistleblowing
  • Proving Causation
  • What is an Agency’s Burden to Avoid Liability Once the Whistleblower Has Proved Causation?
  • Seeking Relief from Retaliation
  • Election of Remedies
  • Can OSC Seek a Stay of a Personnel Action?
  • Damages or Remedies for Retaliation
  • Gag Orders and Non-Disclosure Agreements

 

Experienced Washington DC Whistleblower Protection Act Lawyers

best sexual harassment attorneys Washington DC Maryland VirginiaZuckerman Law has represented whistleblowers before the Office of Special Counsel, Offices of Inspectors General, and Congressional oversight committees.  The firm is uniquely qualified to represent whistleblowers in the federal government because two of the firm’s attorneys served in senior roles at the U.S. Office of Special Counsel.

  • Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs.  During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
  • Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.

The firm has represented whistleblowers testifying before the House Financial Services Committee and vigorously opposed efforts to silence whistleblowers.  The whistleblower protection lawyers at Zuckerman Law have also helped federal employees combat unlawful gag provisions in agency policies or agreements.

If you are seeking representation in a whistleblower protection case, clickhere, or call us at 202-262-8959 to schedule a consultation.

Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.