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