Rainey v. Merit Systems Protection Board

United States Court of Appeals

for the Federal Circuit

______________________

TIMOTHY ALLEN RAINEY,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

DEPARTMENT OF STATE,

Intervenor

______________________

2015-3234

______________________

Petition for review of the Merit Systems Protection

Board in No. DC-1221-14-0898-W-1.

______________________

Decided: June 7, 2016

______________________

LARRY STEVEN GIBSON, Shapiro Sher Guinot &

Sandler, Baltimore, MD, argued for petitioner. Also

represented by ANASTASIA L. MCCUSKER, ANNA ZAPPULLA

SKELTON.

JEFFREY GAUGER, Office of the General Counsel, Merit

Systems Protection Board, Washington, DC, argued for

respondent. Also represented by BRYAN G. POLISUK.

2 RAINEY v. MSPB

EMMA BOND, Commercial Litigation Branch, Civil Di-

vision, United States Department of Justice, Washington,

DC, argued for intervenor. Also represented by BENJAMIN

C. MIZER, ROBERT E. KIRSCHMAN, JR., ELIZABETH M.

HOSFORD; NIELS ALEXANDER VON DEUTEN, Office of the

Legal Adviser, Office of Employment Law, United States

Department of State, Washington, DC.

______________________

Before O’MALLEY, CLEVENGER, and BRYSON, Circuit

Judges.

BRYSON, Circuit Judge.

I

Petitioner Timothy Allen Rainey is a Supervisory For-

eign Affairs Officer in the Bureau of African Affairs,

Office of Regional Security Affairs, at the U.S. Depart-

ment of State. In 2013, he was serving as a contracting

officer representative for the Africa Contingency Opera-

tions Training and Assistance program. On October 13,

2013, Dr. Rainey’s supervisor, the Director of the Office of

Regional and Security Affairs, relieved him of his duties

as contracting officer representative.

Following that action, Dr. Rainey filed a complaint

with the Office of Special Counsel alleging that his duties

as contracting officer representative had been taken away

because he had refused his supervisor’s order to tell a

contractor to rehire a terminated subcontractor. Dr.

Rainey argued that his refusal was based on his view that

carrying out the order would have required him to violate

Federal Acquisition Regulation (“FAR”) section 1.602-2(d),

48 C.F.R. § 1.602-2(d), by improperly interfering with

personnel decisions of a prime contractor and requiring

the prime contractor to operate in conflict with the terms

of the contract.

RAINEY v. MSPB 3

The Office of Special Counsel closed its investigation

without granting relief. Dr. Rainey then filed an Individ-

ual Right of Action appeal with the Merit Systems Protec-

tion Board. He alleged that by removing him from his

duties as contracting officer representative after he “re-

fuse[d] to obey an order that would require me to violate

the law,” the agency had committed a prohibited person-

nel practice under the “right-to-disobey” provision of the

Whistleblower Protection Act of 1989, 5 U.S.C.

§ 2302(b)(9)(D).

The administrative judge initially ruled that the

Board had jurisdiction to consider Dr. Rainey’s appeal

and began a hearing on the merits. Then, before the

second day of the hearing, the Supreme Court issued a

decision in Department of Homeland Security v. MacLean,

135 S. Ct. 913 (2015). In MacLean, the Court held that

the word “law” in the “right-to-disclose” provision of the

Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8)(A),

refers only to a statute, and not to a rule or regulation.

Based on that decision, the administrative judge ruled

that the term “a law” in section 2302(b)(9)(D) should also

be interpreted to refer only to a statute, and not to a rule

or regulation. Because Dr. Rainey’s claim was that he

had refused his supervisor’s order because it would have

required him to violate a regulation, the administrative

judge held that section 2302(b)(9)(D) did not apply to his

claim. Based on that ruling, the administrative judge

held that the Board lacked jurisdiction over the appeal.

Dr. Rainey petitioned the full Board for review, but

the Board denied the petition. The Board agreed with the

administrative judge that, in light of MacLean, “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.” Dr. Rainey now appeals to this

court, raising the same legal issue regarding the scope of

section 2302(b)(9)(D).

4 RAINEY v. MSPB

II

The right-to-disobey provision of the Whistleblower

Protection Act, 5 U.S.C. § 2302(b)(9)(D), protects covered

employees from retaliation “for refusing to obey an order

that would require the individual to violate a law.” Dr.

Rainey argues that Congress could not have intended to

limit section 2302(b)(9)(D) to situations in which the

employee refuses to obey an order that would violate a

statute. According to Dr. Rainey, Congress also intended

to extend protection to an employee who refuses to violate

a regulation, such as the FAR. He acknowledges that in

the MacLean case, the Supreme Court construed the term

“law” in section 2302(b)(8), the right-to-disclose provision

of the Act, to exclude rules and regulations. But he

argues that the Supreme Court’s restrictive reading of the

term “law” in section 2302(b)(8) is not inconsistent with

his broad reading of the term “a law” in section 2302(b)(9)

to include rules and regulations.

Section 2302(b)(8)(A) of the Whistleblower Protection

Act, which was at issue in MacLean, provides that a

federal employee may disclose information that the em-

ployee reasonably believes evidences a violation of any

law, rule, or regulation or gross mismanagement, a gross

waste of funds, an abuse of authority or a substantial and

specific danger to public health or safety “if such disclo-

sure is not specifically prohibited by law, and if such

information is not specifically required by Executive order

to be kept secret in the interest of national defense or the

conduct of foreign affairs.” 5 U.S.C. § 2302(b)(8)(A). The

question before the Court in MacLean was whether a

disclosure prohibited by an agency regulation was “pro-

hibited by law.”

The Court answered that question in the negative in

MacLean, holding that a disclosure in violation of an

agency regulation does not qualify as a disclosure that is

“specifically prohibited by law.” The Court noted that the

RAINEY v. MSPB 5

statute elsewhere refers to violations of “any law, rule, or

regulation.” Based on those references, the Court inferred

that Congress did not intend for the term “law” by itself to

encompass rules and regulations.

In so holding, the Court relied on its prior decision in

Department of the Treasury, IRS v. FLRA, 494 U.S. 922

(1990), in which the Court had rejected an argument that

the term “laws” in one section of a statute meant the same

thing as the phrase “law, rule, or regulation” in another

section of the same statute. The Court noted that in that

case it had held that “a statute that referred to ‘laws’ in

one section and ‘law, rule, or regulation’ in another ‘can-

not, unless we abandon all pretense at precise communi-

cation, be deemed to mean the same thing in both places.’”

MacLean, 135 S. Ct. at 920 (quoting Dep’t of the Treasury,

IRS, 494 U.S. at 132).

The MacLean Court further noted that a broad inter-

pretation of the term “law” in section 2302(b)(8)(A) could

defeat the purpose of the whistleblower statute. If “law”

were construed to include agency rules and regulations,

“then an agency could insulate itself from the scope of

Section 2302(b)(8)(A) merely by promulgating a regula-

tion that ‘specifically prohibited’ whistleblowing.” Mac-

Lean, 135 S. Ct. at 920.

It is difficult to reconcile the Supreme Court’s analysis

in the MacLean case with Dr. Rainey’s position in this

one. In construing the term “law,” standing alone, the

Court in MacLean placed great weight on the fact that

section 2302(b)(8)(A) referred at one point to “any law,

rule, or regulation,” but in the provision before the Court

referred only to a disclosure “prohibited by law.” The

Court regarded the difference between the two formula-

tions as strong evidence that Congress did not intend for

the term “law” to be as broad as the phrase “law, rule, or

regulation.”

6 RAINEY v. MSPB

The same analysis applies here. Paragraph (b)(9) is,

after all, the very next paragraph of section 2308 after

paragraph (b)(8), the provision that was at issue in Mac-

Lean. Like paragraph (b)(8), paragraph (b)(9) uses the

words “law, rule, or regulation” (in subparagraph

(b)(9)(A)), but then uses only the term “a law” in subpara-

graph (b)(9)(D), the provision at issue in this case. As in

the MacLean case, the use of those two different formula-

tions in paragraph (b)(9) strongly suggests that Congress

did not intend for the term “a law” to cover the same

subject matter as the term “law, rule, or regulation.”

Instead, as the Supreme Court held in MacLean, the

difference indicates that the term “law,” standing alone,

was meant to refer to statutes only, and not to rules,

regulations, or statutes. See MacLean, 135 S. Ct. at 919

(“Congress generally acts intentionally when it uses

particular language in one section of a statute but omits it

in another.”).

Dr. Rainey seeks to distinguish MacLean on two

grounds, neither of which is persuasive. First, he argues

that the Supreme Court in MacLean relied on the fact

that the phrase “law, rule, or regulation” appeared in the

same subparagraph of section 2302(b)(8) as the phrase

“prohibited by law,” and that the Court regarded the use

of the two different phrases in close association as evi-

dence that Congress meant to assign them different

meanings. In section 2302(b)(9), the respective terms

“law, rule, or regulation” and “a law” appear in the same

paragraph, but not in the same subparagraph.

That argument has little force. The phrase “law, rule,

or regulation” appears just eight lines above the term “a

law” in section 2302(b)(9), while that phrase appears four

lines above the phrase “prohibited by law” in section

2302(b)(8). In both instances, the use of different formu-

lations in the same paragraph of the statute gives rise to

the natural inference that Congress meant for the two

formulations to have different meanings. Indeed, in other

RAINEY v. MSPB 7

cases, the Supreme Court has drawn the same inference

of different intended meaning when Congress uses partic-

ular language in one section of a statute but omits it in

another section of the same statute. See Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 439-40 (1983) (“[I]t is a

general principle of statutory construction that when one

statutory section includes particular language that is

omitted in another section of the same Act, it is presumed

that Congress acted intentionally and purposely.”); Dep’t

of the Treasury, IRS, 494 U.S. at 132. That principle

applies a fortiori in a case such as this one, where the two

different formulations appear not only in the same stat-

ute, but in the same section, subsection, and paragraph of

the statute.

A corollary of that principle is that normally “identical

words used in different parts of the same act are intended

to have the same meaning.” Dep’t of Revenue of Or. v.

ACF Indus., Inc., 510 U.S. 332, 342 (1994); Comm’r v.

Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993);

Nat’l Org. of Veterans Advocates, Inc. v. Secretary of

Veterans Affairs, 260 F.3d 1365, 1379 (Fed. Cir. 2001).

That principle applies with special force when “the identi-

cal words are used in the same statutory section,” CUNA

Mut. Life Ins. Co. v. United States, 169 F.3d 737, 741

(Fed. Cir. 1999), and is “at its most vigorous when a term

is repeated within a given sentence,” Mohamad v. Pales-

tinian Auth., 132 S. Ct. 1702, 1708 (2012); Brown v.

Gardner, 513 U.S. 115, 118 (1994). In this case, the term

“law,” which has been conclusively construed to mean

“statute” in paragraph (8)(A) of section 2302(b) appears

within the same statutory sentence in paragraph (9)(D) of

that same subsection. The use of the same term in such

close proximity gives rise to a strong inference that the

term was intended to have the same meaning in both

places.

Second, Dr. Rainey argues that the Supreme Court in

MacLean relied on the policy consideration that a broad

8 RAINEY v. MSPB

interpretation of the term “law” in section 2302(b)(8)

would have permitted agencies to insulate themselves

from disclosures simply by promulgating regulations

specifically prohibiting whistleblowing. The Court’s

reference to that policy consideration, however, was

clearly subsidiary to its textual analysis, which is suffi-

ciently broad to govern this case.

Dr. Rainey makes the creative argument that, at least

in this context, the term “a law” is actually broader than

the phrase “law, rule, or regulation.” He contends that

the latter phrase would have excluded matters such as

agency policies and court orders, but that such matters

could be encompassed by the words “a law.” Thus, Dr.

Rainey explains that Congress may have elected not to

use the formulation “law, rule, or regulation” in section

2308(b)(9)(D) because it wanted to give an employee

protection for refusing to commit acts that would be

contrary to, for example, a court order or an informal

agency policy falling short of a rule or regulation.

The problem with that argument is that if Congress

had intended to protect employees who violated proscrip-

tions other than laws, rules, and regulations, it could

readily have done so simply by using a term such as

“unlawfully” in section 2302(b)(9)(D), so that the statute

would protect an employee from retaliation “for refusing

to obey an order that would require the individual to act

unlawfully.” In fact, Congress used the term “lawfully” in

section 2302(b)(9)(B), another sub-paragraph of section

2302(b)(9), which suggests that Congress had something

else in mind when it chose not to use the formulation

“unlawfully” in section 2309(b)(9(D), but instead chose the

term “a law.”

A textual point that provides further support for the

Board’s construction of the statute is that section

2302(b)(9)(D) uses the formulation “a law,” not simply the

term “law.” While the term “law” might be deemed, in

RAINEY v. MSPB 9

some circumstances, to refer to any source of legal author-

ity, including rules, regulations, or court orders, the term

“a law” is less readily construed in that manner. Thus,

for example, while it is conceivable that a court order

could be understood to be encompassed within the scope

of providing protection for an individual who refused to

obey an order that would require him “to violate the law,”

it is much less likely that a court order would be under-

stood to be “a law,” and thus within the scope of the

language of section 2302(b)(9)(D).

Dr. Rainey makes a strong plea that the distinction

between statutory proscriptions and other legal rules

would not make sense in this context, as section

2302(b)(9)(D) would extend or deny protection depending

on whether the legal rule at issue had been codified as a

statute or simply adopted by an agency, pursuant to its

statutory authority to promulgate regulations. The

result, according to Dr. Rainey, would be that some im-

portant regulations, such as the FAR, would be left out of

the coverage of section 2302(b)(9)(D), even though there is

no clear indication in the legislative history that Congress

intended to draw such a line.

While it is true that the legislative history does not

explicitly address the issue before the court in this case,

the background of the provision in section 2302(b)(9)(D) is

nonetheless enlightening. Prior to the enactment of that

statute, federal employees were not entitled to refuse to

comply with orders of their agency superiors, even if they

believed the orders were unlawful. Section 2302(b)(9)(D)

was controversial, as it conflicted with the longstanding

principle of “comply, then grieve,” i.e., the principle that

employees should not take it upon themselves to decide

which agency orders to follow, but should follow the

orders and then challenge the lawfulness of the orders

afterwards.

10 RAINEY v. MSPB

At a House hearing on the bill that became the Whis-

tleblower Protection Act, statements by the Senior Execu-

tives Association and the Federal Managers Association

cautioned against the adoption of a broad general rule

permitting employees to disobey orders they believed to

be unlawful. See Hearing on H.R. 25 Before the H. Sub-

comm. on Civil Serv. of the H. Comm. on Post Office and

Civil Serv., 100th Cong. 197, 202 (1987) (statement of

Carol Bonosaro, President, Senior Executives Association)

(“We continue to believe . . . that, with the exception of

life-threatening situations, an employee should obey the

direction of his or her superior when given an order and

challenge the order later.”); id. at 204, 206 (statement of

David W. Sanasack, Executive Director, Federal Manag-

ers Association) (“[T]he general rule in this area of labor

law is, quote, act now, grieve later. Employees must

follow the orders of their supervisors. If they have a

problem with that order, they have avenues to address

their concerns, either through a collective bargaining

agreement or an agency grievance procedure. To suggest

that there is some right inherent in failing to follow

orders will upset the balance we talked about earlier.”).

The Joint Explanatory Statement that was provided

to the House of Representatives to explain the compro-

mises agreed upon with the Senate also noted that the

provision protecting employees “in their right to refuse to

obey an order that would require them to violate a law”

was meant “to achieve a balance between the right of

American citizens to a law-abiding government and the

desire of management to prevent insubordination.”

134 Cong. Rec. 27855 (Oct. 3, 1988). In light of that

legislative background, it is not surprising that Congress

would have legislated cautiously in this area. Contrary to

Dr. Rainey’s position, it is therefore not “absurd” to con-

clude that Congress may have decided to limit the protec-

tion for persons disobeying agency orders to those orders

that were contrary to a statute.

RAINEY v. MSPB 11

Dr. Rainey makes a final argument that the FAR is a

particularly important regulation that has the full force

and effect of law and therefore should be regarded as “a

law” within the meaning of section 2302(b)(9)(D) even if

other regulations do not qualify as “laws” for purposes of

that statute. The first problem with that argument is

that substantive agency regulations that are promulgated

pursuant to statutory authority typically have the “force

and effect of law,” see Perez v. Mortgage Bankers Ass’n,

135 S. Ct. 1199, 1204 (2015); Chrysler Corp. v. Brown,

441 U.S. 281, 295 (1979), so that feature does not distin-

guish the FAR from other more quotidian legislative

rules. The second problem with the argument is that, as

noted, there is nothing in the section 2302(b)(9) that even

hints at a distinction between important regulations and

less important regulations; to the contrary, the statute

distinguishes between “a law” and “law, rule, or regula-

tion,” and the FAR clearly falls on the “regulation” side of

that divide.

Dr. Rainey’s arguments are heavy on policy reasons

why Congress likely would not have wanted to confine the

scope of section 2302(b)(9)(D) to statutes. Those policy

considerations are not without force, and it may be that

the statute should be extended to cover rules, regulations,

and other sources of legal authority. If so, Congress is

free to alter the scope of the statute. But we are not so

free. Between the restrictive language chosen by Con-

gress and the closely analogous decision of the Supreme

Court in MacLean, we are constrained to hold that the

protection granted by section 2302(b)(9)(D) is limited to

orders that are contrary to a statute, and does not encom-

pass orders that are contrary to a regulation. We there-

fore uphold the Board’s interpretation of the statute,

which led it to conclude that it lacks jurisdiction over this

case.

AFFIRMED