NOVA Legal Beat: Can Feds Refuse to Comply With Unlawful Orders?

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I work for a federal agency. If I’m told to do something that I believe would result in a violation of law, can I refuse to comply with that order?

A. The federal government places a premium on obedience, so orders are meant to be followed, regardless of whether they will result in a violation of law. Employees who refuse to carry out orders believing they will result in such a violation usually will not be praised by an agency for their righteousness. Instead, they will be branded as being insubordinate.

Employees caught in this ordered-to-do-wrong bind should adhere to what the Merit Systems Protection Board (MSPB) has dubbed the “obey now, grieve later” rule. Under this rule, employees should carry out whatever they were ordered to do, and then blow the whistle on the wrongdoing. They could, for example, disclose information about the violation to the Office of Special Counsel (OSC) or Office of the Inspector General (OIG).

An exception to this rule applies to “certain limited circumstances where obedience would place the employee in a clearly dangerous situation, or when complying with the order would cause him irreparable harm,” the MSPB noted in Metz v. Department of the Army (2011). Federal employees concerned that they’ve been told to do something criminally illegal or who have been subjected to retaliation for blowing the whistle on wrongdoing should immediately contact a federal employment law attorney.

Q. I recently learned that my supervisor at a federal agency has been saying discriminatory things about me. I’m on the fence about filing a complaint. How long do I have to decide?

A. Under Equal Employment Opportunity Commission (EEOC) regulations, federal employees generally have to contact an agency Equal Employment Opportunity (EEO) counselor within 45 days of when they knew or should have known of the discriminatory act or of when a discriminatory personnel action took effect. However, federal employees may not always immediately know that they were the victim of a discriminatory act, or it may take a while for a discriminatory statement to work its way through the office to them.

In cases involving the delayed awareness of discrimination, the clock for EEO counselor contact does not start ticking until the time when the employee should reasonably have known about the discrimination. Under this so-called “reasonable suspicion” standard, the EEOC can extend the 45-day deadline for EEO counselor contact.

It is not uncommon for agencies to attempt to dismiss a complaint that, at first glance, appears to involve alleged discriminatory acts that fall outside the 45-day window. If that happens, and you in fact reasonably became aware of the discrimination no more than 45 days prior to contacting an EEO counselor, consult with an experienced federal employment law attorney. An attorney can help you file an appeal and obtain an extension by highlighting the reasonable suspicion standard.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com.