It seems timely to advise the federal workforce on when it can refuse to obey an order of a superior.
Generally, the federal workforce follows the well-established principle in employment law of “obey now, grieve later.” For federal workers, it is codified in the case law of insubordination. The Federal Circuit articulated the legal definition of “insubordination” in the 1989 case of Phillips v. GSA, as “willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed.” Since then, the Merit Systems Protection Board reviews insubordination cases to consider whether the employee received “an authorized order” that the supervisor was “entitled to have obeyed.”
We know from an early MSPB case that an agency “was not entitled to have the order obeyed” when the order to an employee violated an OPM regulation. We also know from early MSPB cases that an employee may be able to avoid obeying an order “in situations where there could be a significant adverse impact on the employee for cooperation with an order that may be improper.” Per MSPB, those situations are rare.
Fast forward and see that Congress has had a growing concern that executive branch workers may be on the short end of the “obey now” principle, and thus have provided federal workers with some legal leeway.
First came the Whistleblower Protection Enhancement Act of 2012. There, Congress amended the (b)(9) prohibited personnel practice by granting federal workers a statutory Independent Right of Action to appeal to the MSPB an otherwise non-appealable personnel action (a 14-day suspension or less, reprimand, performance rating) if the employee believes the action was reprisal for refusing to obey an order that would require the employee to violate a law. Prior to then, only PPP claims of whistleblower reprisal had IRA appeal rights.
Then, in 2017, Congress passed the Follow the Rules Act. Prior to 2017, the (b)(9) PPP made it unlawful to take a personnel action against a federal employee “for refusing to obey an order that would require the individual to violate a law.” Then came the Rainey v. MSPB case decided by the Federal Circuit in 2016. There, the employee claimed he was stripped of his Federal Acquisition Regulation duties and received a sub-par performance rating in retaliation for his refusal to obey an order from his supervisor that would have violated the FAR. Because of the WPEA, the employee could file an MSPB appeal on the loss of duties and lowered performance rating.
That case was appealed to the Federal Circuit, but it held that the employee failed to make a (b)(9) claim because “violate a law” as used in (b)(9) meant a statute, not a regulation. The Federal Circuit relied on the Supreme Court’s 2015 decision in Department of Homeland Security v. MacLean to interpret “violate a law.” Because Rainey claimed he was retaliated against because he refused to obey an order that would violate the FAR, not a statute, he had no protection under (b)(9). Thus, the court of appeals said Congress was free to amend (b)(9) to extend protections for disobeying an order that would require an employee to violate rules and regulations, but for Rainey it was limited to federal statute.
Congress did just that in 2017 when it passed the Follow Rules Act. It is now a PPP to take a personnel action against a federal employee for “refusing to obey an order that would require the individual to violate a law, rule, or regulation.” And if you believe a personnel action not otherwise appealable to the MSPB has been taken against you for refusing to obey such an order, you now have an IRA right to appeal that action to the MSPB.
Debra Roth is a partner at Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. Email your legal questions to firstname.lastname@example.org.