Rainey v. Merit Systems Protection Board
824 F.3d 1359
Fed. Cir.2016Background
- Timothy Allen Rainey, a Supervisory Foreign Affairs Officer at the State Department, was removed from duties as a contracting officer representative after refusing his supervisor’s order to direct a prime contractor to rehire a terminated subcontractor.
- Rainey told the Office of Special Counsel he refused because complying would have violated the Federal Acquisition Regulation (FAR) by improperly interfering with the contractor’s personnel decisions. OSC closed its investigation without relief.
- Rainey filed an Individual Right of Action appeal with the Merit Systems Protection Board, alleging retaliation in violation of the Whistleblower Protection Act’s "right-to-disobey" provision, 5 U.S.C. § 2302(b)(9)(D).
- An administrative judge, relying on the Supreme Court’s intervening decision in Department of Homeland Security v. MacLean, ruled that § 2302(b)(9)(D) protects refusal to obey orders that would require violation of a statute, not a rule or regulation, and dismissed for lack of jurisdiction.
- The full MSPB denied review, and the Federal Circuit affirmed, holding that the term "a law" in § 2302(b)(9)(D) refers to statutes only and does not encompass agency regulations like the FAR.
Issues
| Issue | Rainey’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether § 2302(b)(9)(D) protects refusal to obey an order that would require violating a regulation (e.g., FAR) | "A law" should include regulations; Congress intended protection for refusal to violate rules and regulations | "A law" means statutes only; MacLean compels a narrow reading excluding regulations | Court held § 2302(b)(9)(D) is limited to statutes; does not cover regulations |
| Whether MacLean’s construction of “law” in § 2302(b)(8)(A) is inapplicable here | MacLean involved a different subparagraph; § 2302(b)(9)(D) should be interpreted more broadly | The proximity and parallel statutory phrasing make MacLean directly applicable | Court concluded MacLean’s textual reasoning applies and controls here |
| Whether policy arguments (risk to important regulations like FAR) justify broader interpretation | Policy: excluding regulations defeats purpose; FAR should count because it has force of law | Text and legislative caution justify limiting "a law" to statutes; agencies could otherwise circumvent statute | Court refused to adopt policy-based expansion; left change to Congress |
| Whether "a law" could encompass nonstatutory sources (court orders, policies) | "A law" might be broader than "law, rule, or regulation" and cover court orders or policies | If broader protection intended, Congress could have used terms like "unlawfully"; Congress used different phrasing elsewhere | Court held textual usage indicates Congress meant "a law" to be statutory only |
Key Cases Cited
- Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015) (construed “law” in § 2302(b)(8)(A) to exclude rules and regulations)
- Department of the Treasury, IRS v. FLRA, 494 U.S. 922 (1990) (identical statutory words in different sections should not be treated as coextensive)
- Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) (presumption that Congress acts intentionally when it uses particular language in one section but omits it in another)
- Department of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332 (1994) (identical words used in different parts of the same act are intended to have the same meaning)
- Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012) (term repetition within a sentence strengthens inference of consistent meaning)
- Brown v. Gardner, 513 U.S. 115 (1994) (textual repetition principles apply in statutory interpretation)
- Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015) (agency regulations promulgated pursuant to statute have the force and effect of law)
- Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (similar point on force of law for agency rules)