                          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.




     1
       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.
     2
         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.
