John Stone, Senior Attorney, National Legal Research Group
It is commonly understood that substantive agency regulations that are promulgated pursuant to statutory authority typically have the "force and effect of law." See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015). That does not mean, however, that for all purposes and in all contexts, a law is the same as a statute, and vice versa. The point is illustrated by a recent decision by the Court of Appeals for the Federal Circuit, where the presence of a one-letter word, "a," was a part of the court's reasoning. Rainey v. Merit Sys. Prot. Bd., No. 2015-3234, 2016 WL 3165617 (Fed. Cir. June 7, 2016).
A Foreign Affairs Officer in the Department of State was relieved of his duties as a contracting officer representative. The officer filed a complaint with the Office of Special Counsel, alleging that his duties had been taken away because he had refused his supervisor's order to tell a contractor to rehire a terminated subcontractor. He argued that his refusal was based on his view that carrying out the order would have required him to violate a federal regulation, 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.
First before the Office of Special Counsel and then before the Merit Systems Protection Board, the officer alleged that by removing him from his duties as contracting officer representative after he refused to obey an order that would require him to violate the law, the agency had committed a prohibited personnel practice under the "right-to-disobey" provision of the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b)(9)(D). This provision protects covered employees from retaliation "for refusing to obey an order that would require the individual to violate a law." (Emphasis added.) The officer argued that contrary to the decisions in his case up to that time, Congress could not have intended to limit the right-to-disobey provision to situations in which the employee refuses to obey an order that would violate a statute, as distinct from a regulation.
The administrative judge in the case initially had ruled that the Board had jurisdiction to consider the officer'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 in the officer's case ruled that the term "a law" in the similar (though not identical) "right-to-disobey" section should also be interpreted to refer only to a statute, and not to a rule or regulation. Because the officer'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 the "right-to-disobey" section did not apply to his claim. Based on that ruling, the administrative judge held that the Board lacked jurisdiction over the appeal, and the Federal Circuit Court agreed.
While there were some other considerations that influenced the court, the case is an example of how the use of even a single, one-letter word like "a" can affect the outcome. A textual point that provided further support for the Board's construction of the "right to disobey" statute was that it uses the formulation "a law" and not simply the term "law." While "law" might be deemed, in some circumstances, to refer to any source of legal authority, 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," in the court's view, it is much less likely that a court order would be understood to be "a law," and thus within the scope of the language in the "right-to-disobey" statute. Following this reasoning, the Office of Special Counsel, the Merit Systems Protection Board, and the Federal Circuit all agreed that an agency regulation was not "a law" as would be necessary to entitle the terminated officer to relief under the "right-to-disobey" legislation.
