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Todd Davis

Follow the Rules Act

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Congress passed and the President signed into law yesterday, the Follow the Rules Act.  The purpose of the law is to clarify that, under the Whistleblower Protection Act, an employee who refuses to obey an order that would require the employee to violate a law, rule, or regulation is protected.  It was passed unanimously 409-0.  The issue of extending whistleblower protections to those who refuse to violate rules or regulations was discussed on a now closed discussion which is at the link below from last year.  I've included some excerpts from the Congressional Record below.

"Last year, the U.S. Court of Appeals for the Federal Circuit considered the case of Dr. Timothy Rainey. Dr. Rainey, an employee of the State Department, refused an order to violate the Federal Acquisition Regulation.  Dr. Rainey's supervisors subsequently took away his responsibilities as a contracting officer representative. He argued it was because of his refusal to obey the order. Thus, the Federal Circuit considered whether Federal managers can retaliate against employees who refuse to obey an order that would violate a government rule or regulation rather than a statute.  Unfortunately, the Federal Circuit has a record of misinterpreting the law on whistleblowers. That is precisely what happened here. The court held such employees were not protected. Ironically, the court relied on a significant 2015 Supreme Court decision, DHS v. MacLean, which reaffirmed the protections of the Whistleblower Protection Act.  The Federal Circuit's decision puts Federal employees in an impossible situation. It forces them to choose between following their superior's orders or following the agency's rules or regulations. In many ways, an agency's rules and regulations are the standing orders of the head of the agency.  My colleague, Representative Duffy, introduced the Follow the Rules Act to fix this problem. H.R. 657 makes clear that employees are protected from retaliation for disobeying orders that would violate an agency rule or regulation. Refusing to obey such orders is exactly the type of action for which Federal employees should be protected from."

"The Federal circuit, God knoweth how, held that an employee who refuses to obey an order is protected only if the order would violate a law, a statute, but not if the order would violate a rule or a regulation. Talk about looking at angels on the head of a pin. The court's ruling was contrary, clearly, to the Whistleblower Protection Act and the intent of this Congress.  In enacting the Whistleblower Protection Act, Congress clearly intended that protections granted to government employees who blow the whistle on waste, fraud, and abuse be construed broadly. We clearly had in mind not only laws, but rules and regulations as well."

 

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This is interesting. The law didn't define "rule" or "regulation". Does "rule, or regulation" only include what is contained in the Code of Federal Regulations? Or does it extend to the DFARS PGI, the AFFARS, the nonregulatory parts of the GSAM, etc.? What about policies issued by the HCA?

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Depending on where this law is codified in the U.S. Code, maybe there will be a definition of "rules" or "regulations" there, but I doubt it.  Absent a definition, I think it would be a matter of statutory interpretation.  Maybe it will take another adverse action against an employee and subsequent lawsuit to get an answer to that, after which Congress may have to take another look at the statute. 

At least one congressman characterized the issue as being a choice between "following their superior's orders or following the agency's rules or regulations."  That congressman went on to state "in many ways, an agency's rules and regulations are the standing orders of the head of the agency."  This would seem to indicate they mean any rule or regulation made by the agency head.  For example, if the agency head or designee implemented a regulation or rule (policy), regardless of whether it was a published rule or regulation in the FR and/or CFR, then I think it could be argued that this statute might extend to such rules or regulations.  However, there could be a situation where an employee is told to do something that would violate one of those agency head issued rules or regulations.  I supposed the agency head is free to repeal or authorize a deviation from the rule if they have the authority to do so and require compliance with the different direction being provided to the employee.

I don't think these protections would extend to those rules or policies issued below the agency head level.  I would think that folks under that level are free to change policy or waive compliance with the lower level policies that they themselves established.

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