Rainey v. Merit Sys. Protection Bd., No. 15-3234 (Fed. Cir. 2016)Annotate this Case
Rainey, a State Department Supervisory Foreign Affairs Officer, was with the Africa Contingency Operations program when his supervisor relieved him of his duties as contracting officer representative. Rainey complained to the Office of Special Counsel, alleging that his duties had been terminated because he had refused his supervisor’s order to tell a contractor to rehire a terminated subcontractor. Rainey believed that carrying out the order would require him to violate the Federal Acquisition Regulation by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the contract. The Office of Special Counsel closed its investigation without granting relief. Rainey filed an Individual Right of Action appeal with the Merit Systems Protection Board, citing the “right-to-disobey” provision of the Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(9)(D). During his hearing, the Supreme Court held, in in Department of Homeland Security v. MacLean, that the word “law” in the Act's “right-to-disclose” provision, refers only to a statute, and not to a rule or regulation. The ALJ held that the Board lacked jurisdiction over a claim based on a regulation. The Board agreed. The Federal Circuit affirmed, stating that its decision was constrained by the right-to-disobey provision's language, which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” and the MacLean holding.