The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 49
Docket No. DC-1221-14-0898-W-1
Timothy Allen Rainey,
Appellant,
v.
Department of State,
Agency.
August 6, 2015
Larry S. Gibson, Baltimore, Maryland, for the appellant.
Niels von Deuten and Anne Joyce, Esquire, Washington, D.C., for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the following reasons, we DENY the petition for review and AFFIRM the initial
decision.
BACKGROUND
¶2 The appellant holds the position of Program Director for the agency’s
Bureau of African Affairs. Initial Appeal File (IAF), Tab 1 at 1, Tab 9 at 17. He
filed this IRA appeal, alleging that he was the victim of prohibited personnel
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practices. IAF, Tab 1 at 6. Specifically, the appellant asserted that the agency
violated 5 U.S.C. § 2302(b)(9)(D), which protects employees from retaliation “for
refusing to obey an order that would require the individual to violate a
law.” 5 U.S.C. § 2302(b)(9)(D). 1 IAF, Tab 8 at 4-5. He alleged that the agency
improperly stripped him of particular job duties and gave him a subpar
performance rating for disobeying an order that would have required that he
violate (1) a Federal Acquisition Regulation 2 that limits the authority of a
contracting officer’s representative (COR), and (2) “PA296: How to be a COR,”
the agency’s training course for COR certification, which further clarifies the
limitations to this authority. Id. at 4-5, 12, 16.
¶3 The agency moved to dismiss the appeal for lack of Board jurisdiction.
IAF, Tab 10 at 11-18. Among other things, the agency argued that,
although 5 U.S.C. § 2302(b)(9)(D) protects employees from retaliation when they
refuse to comply with an order that causes a violation of statute, this protection
does not extend to violations of a regulation or policy. IAF, Tab 10 at 12-15.
¶4 Citing the Supreme Court’s recent decision in Department of Homeland
Security v. MacLean, 135 S. Ct. 913 (2015), the administrative judge dismissed
the appeal for lack of jurisdiction, finding that the appellant’s allegations
pertaining to the violation of a regulation and agency training did not amount to a
nonfrivolous allegation that he refused to obey an order that would require him to
violate “a law.” IAF, Tab 30, Initial Decision (ID) at 4-6.
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In his initial filing, the appellant claimed that the agency violated both 5 U.S.C.
§§ 2302(b)(8) and 2302(b)(9)(D). IAF, Tab 1 at 6. However, his response to the
administrative judge’s jurisdictional order narrowed the allegations, citing only
section 2302(b)(9)(D). IAF, Tab 8 at 4-5.
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48 C.F.R. § 1.602-2(d)(5), (7).
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¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response, and the appellant has replied. PFR
File, Tabs 3-4.
ANALYSIS
¶6 The appellant argues on review that the administrative judge erred in
concluding that the “right-to-disobey” provision at section 2302(b)(9)(D) applies
only to violations of statute, and not to violations of rules or regulations. PFR
File, Tabs 1, 4. We disagree.
¶7 This case, like MacLean, arises under the Whistleblower Protection Act, as
amended by the Whistleblower Protection Enhancement Act of 2012. Unlike
MacLean, however, it does not involve a whistleblower claim under 5 U.S.C.
§ 2302(b)(8)(A)(i) that a personnel action was taken in reprisal for having
disclosed information that the appellant reasonably believed to evidence “any
violation of any law, rule, or regulation . . . if such disclosure is not specifically
prohibited by law.” Rather, as stated above, it concerns a claim under
section 2302(b)(9)(D) that the agency took a personnel action for “refusing to
obey an order that would require the individual to violate a law.” The dispositive
issue, therefore, is whether the appellant’s right under section 2302(b)(9)(D) to
disobey an order that would require him to violate “a law” encompasses an order
that would require him to violate a rule or regulation.
¶8 We find the MacLean Court’s construction of the term “law” in
section 2302(b)(8)(A)(i) instructive for purposes of interpreting the term “law” in
section 2302(b)(9). In MacLean, the Transportation Security Administration
(TSA) argued that an employee’s disclosures were not protected under
section 2302(b)(8)(A)(i) because they were “specifically prohibited by law.” The
Court disagreed, holding that a disclosure “specifically prohibited by law” must
be expressly barred by the statute itself, not merely by an agency rule or
regulation. See MacLean, 135 S. Ct. at 919-21. Noting the close proximity
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between “law” and “law, rule, or regulation” within the whistleblower provision,
as well as the fact that the broader “law, rule, or regulation” language was used
multiple times throughout section 2302, the Court determined that Congress’s use
of the narrower word “law” was deliberate. Id. Accordingly, the Court held that
the term “law” did not encompass rules or regulations. Id. at 921. Therefore, the
Court concluded that the employee’s disclosure in MacLean was not “specifically
prohibited by law,” even if prohibited by TSA regulation. See id. at 920-21.
¶9 The appellant argues that the Supreme Court’s MacLean decision is not
dispositive and that “law” should be interpreted broadly for purposes of
section 2302(b)(9). PFR File, Tab 4 at 6-12. We disagree. Congress did not use
the phrase “law, rule, or regulation” in the statutory language at issue here. As
the MacLean Court recognized, Congress generally acts intentionally when it uses
particular language in one section but omits it in another. MacLean, 135 S. Ct.
at 919.
¶10 Further, it is a normal rule of statutory construction that identical words
used in different parts of the same act are intended to have the same meaning,
particularly when the words are in the same statutory section. Hughes v. Office of
Personnel Management, 119 M.S.P.R. 677, ¶ 7 (2013). Notwithstanding the
appellant’s policy arguments in favor of a broader interpretation of “law” for
purposes of the right-to-disobey provision, e.g., PFR File, Tab 1 at 5-13, we are
bound by the express terms of the statute, see generally Commissioner of Internal
Revenue v. Lundy, 516 U.S. 235, 252 (1996) (a court may not rewrite a statute to
comport with what it deems good policy), superseded by statute on other grounds
as stated in Murdock v. United States, 103 Fed. Cl. 389 (Fed. Cl. 2012).
¶11 In light of MacLean, we hold that the right-to-disobey provision at
section 2302(b)(9)(D) extends only to orders that would require the individual to
take an action barred by statute. Because the appellant in this case contends that
he disobeyed an order that would have required him to violate an agency rule or
regulation, his claim falls outside of the scope of section 2302(b)(9)(D).
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¶12 Thus, the administrative judge correctly dismissed this appeal for lack of
jurisdiction.
ORDER
¶13 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
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both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.