[00:00:18] Speaker 04:
All right, the next case before the court is an appeal from a decision of the Merit System Protection Board.

[00:00:23] Speaker 04:
It's Rainey versus MSPB, case number 153234.

[00:00:27] Speaker 04:
Excuse me.

[00:00:32] Speaker 04:
Mr. Gibson, you want five minutes for rebuttal?

[00:00:37] Speaker 04:
Yes.

[00:00:37] Speaker 04:
All right, and then we're going to divide the argument on the other side.

[00:00:42] Speaker 04:
Is that right?

[00:00:42] Speaker 01:
Yes.

[00:00:45] Speaker 04:
Correct.

[00:00:45] Speaker 04:
All right, and is it Mr. Gogger?

[00:00:47] Speaker 04:
Is that how you pronounce that?

[00:00:48] Speaker 04:
OK.

[00:00:51] Speaker 02:
OK.

[00:00:52] Speaker 02:
You may begin.

[00:00:53] Speaker 02:
I'm Larry Gibson, counsel for Dr. Timothy Rainey.

[00:00:57] Speaker 02:
My associate is Anna Skelton.

[00:01:00] Speaker 02:
Chief Judge Roberts in McLean stated that law in a statute includes substantive regulations, quote, in the absence of a clear showing of contrary legislative intent.

[00:01:18] Speaker 02:
That is acknowledged on page 12 of the respondent's brief.

[00:01:26] Speaker 02:
They refer to that.

[00:01:28] Speaker 02:
That's been the situation since Chrysler in 1979.

[00:01:31] Speaker 02:
In this case, as to this right to disobey, there is no showing of a contrary legislative intent.

[00:01:42] Speaker 02:
So therefore, law in this statute includes a regulation.

[00:01:48] Speaker 04:
So are you saying that we should interpret law differently just because in McLean the interpretation was beneficial to the whistleblower and here it is not?

[00:02:00] Speaker 02:
No, I'm saying that in McLean we had a different situation.

[00:02:05] Speaker 02:
We had a situation where law was in a clause coupled, in that case, with executive privilege.

[00:02:13] Speaker 02:
It's quite clear.

[00:02:14] Speaker 02:
that one of the situations in which law is interpreted, about the only time is included only a statute, is when a law is combined with one of three words.

[00:02:26] Speaker 02:
When law is in the clause, combined with either executive order, or the term rule, or the term regulation, then law is giving the limited interpretation of meaning only a statute.

[00:02:45] Speaker 02:
Chief Judge Roberts explains that.

[00:02:47] Speaker 02:
In this case, in McLean... But in McLean, the word law was deemed not to include regulation.

[00:02:54] Speaker 02:
That's right.

[00:02:55] Speaker 02:
Because this law was in a provision coupled with executive order.

[00:03:02] Speaker 02:
It was a right to disclose.

[00:03:04] Speaker 02:
And up above, it was... Well, the two exceptions.

[00:03:08] Speaker 02:
You have a right to disclose, except as explicitly prohibited by law or by an executive

[00:03:15] Speaker 02:
Order.

[00:03:16] Speaker 03:
Regulation or rule.

[00:03:18] Speaker 03:
And then down below it said, but only by law.

[00:03:21] Speaker 02:
Yeah, but one of the exceptions to the general rule that is articulated by McLean as the word law in the statute means regulations is those situations where the word law is coupled with regulation, rule, or executive order.

[00:03:45] Speaker 02:
There are four things that, first of all, there's no contrary legislative intent, but there are four things that Congress did in this statute to be clear that it intended as to the right to disobey for it to include regulations.

[00:04:02] Speaker 02:
First of all, they explicitly defined law to include regulations in a section.

[00:04:09] Speaker 02:
If you would turn to page 43 of the blue brief, this is the section.

[00:04:14] Speaker 02:
dealing with the veterans' preference.

[00:04:16] Speaker 02:
The veterans' preference means any of the following provisions of law.

[00:04:23] Speaker 02:
And then there are some statutes.

[00:04:25] Speaker 02:
And then at the end, there are regulations.

[00:04:27] Speaker 02:
So this is on page 43 of the blue brief.

[00:04:31] Speaker 02:
In this very statute, Congress explicitly included regulations in provisions of law.

[00:04:40] Speaker 02:
That's one thing that Congress did here.

[00:04:44] Speaker 02:
Secondly, Congress included two other provisions where it uses the law in an obvious generic sense.

[00:04:57] Speaker 02:
And interestingly enough, it's the two clauses immediately prior to the right to disobey.

[00:05:04] Speaker 02:
Which section of the statute are you talking about now?

[00:05:06] Speaker 02:
I'm referring to 23

[00:05:09] Speaker 02:
O2B9C, I call it the right, and let me find it for you Your Honor, I call it the right to cooperate.

[00:05:17] Speaker 02:
B9C, cooperate?

[00:05:21] Speaker 02:
Yes, it's at the top of page 42 of the blue brief.

[00:05:25] Speaker 02:
There is the right to cooperate

[00:05:29] Speaker 02:
with an inspector general investigation, et cetera, in accordance with applicable provisions of law.

[00:05:36] Speaker 02:
That is a generic use of the word law.

[00:05:39] Speaker 02:
There's been no disagreement by the government.

[00:05:43] Speaker 02:
Is anyone to argue that that is intended to be limited just to the statutes?

[00:05:49] Speaker 00:
One point that seems to be a possible

[00:05:54] Speaker 00:
ground for distinguishing between these multiple references to variance on the term law is that in the subsection paragraph that we're talking about here, it doesn't refer to applicable provisions of law.

[00:06:08] Speaker 00:
It talks about violating a law.

[00:06:11] Speaker 02:
Yes, Your Honor.

[00:06:12] Speaker 00:
And a law seems to me, at least as a matter of first principles, to suggest something perhaps more specific than

[00:06:20] Speaker 00:
what lawfully would suggest.

[00:06:23] Speaker 00:
If, for example, the language had been for refusing to obey an order that would require the individual to act unlawfully, then we wouldn't be here.

[00:06:33] Speaker 00:
Sure.

[00:06:33] Speaker 00:
I understand, Your Honor.

[00:06:35] Speaker 00:
But Congress chose to say to violate a law.

[00:06:40] Speaker 00:
I understand.

[00:06:41] Speaker 00:
It seems to be narrower, potentially, at least, than just to violate law.

[00:06:46] Speaker 02:
Congress was aware, Your Honor,

[00:06:49] Speaker 02:
of the general rule of Chrysler that as a general matter, the word law in a statute includes the regulations.

[00:06:59] Speaker 02:
They were aware of that.

[00:07:01] Speaker 03:
Why didn't they say, indeed, or refusing to a ban order would violate a

[00:07:08] Speaker 03:
Law, rule, or regulation?

[00:07:10] Speaker 02:
Oh, because, Your Honor, that would then not include executive orders.

[00:07:15] Speaker 02:
It would not include court orders.

[00:07:17] Speaker 02:
It's very clear that the terms, rule, law, is a limiting.

[00:07:22] Speaker 03:
Well, if you look throughout the statute, they refer to law, rule, and regulation frequently, not referring to executive order.

[00:07:30] Speaker 02:
Yes.

[00:07:30] Speaker 02:
And each of those situations when the word law is combined with executive order or rule or regulation, in each of those situations... Where is it combined with executive order?

[00:07:42] Speaker 02:
The one that was interpreted in McLean, Your Honor.

[00:07:46] Speaker 02:
And Judge Roberts explains.

[00:07:49] Speaker 02:
that that's one where there was a right to disclose unless explicitly prohibited by law or by an executive order.

[00:07:58] Speaker 02:
And Judge Roberts explains that law there must be limited, because if it is given a generic intent, the term executive order would be redundant.

[00:08:11] Speaker 02:
So we have one, an explicit,

[00:08:15] Speaker 02:
provision where, I pointed to you earlier, the veterans preference, where the word law includes regulation.

[00:08:25] Speaker 04:
We have here, secondly... But I guess I'm not sure I understand why that helps you.

[00:08:30] Speaker 04:
I mean, the fact that they knew how to include regulation when they wanted to.

[00:08:35] Speaker 02:
It shows that Congress understood exactly what Chief Judge Roberts said and what has been said consistently, what's said

[00:08:43] Speaker 02:
The jurisdiction of this court, this court can consider a matter rising out of the law of the United States.

[00:08:49] Speaker 02:
Of course, this court constantly considers matters arriving out of rules, out of federal executive orders.

[00:08:56] Speaker 02:
What is perjury?

[00:08:58] Speaker 02:
There's this perjury statute.

[00:08:59] Speaker 02:
It's making a false statement

[00:09:02] Speaker 02:
The statute speaks where there's a requirement of oath by law.

[00:09:07] Speaker 02:
That's been interpreted to apply to situations where the oath requirement is set by rules.

[00:09:12] Speaker 02:
It sets by regulations.

[00:09:14] Speaker 02:
Repeat throughout the usage of the word law.

[00:09:19] Speaker 02:
It's generic as a general matter, but there's some times when it is specific.

[00:09:24] Speaker 02:
And the main is when it is, as Judge Roberts pointed out in McLean, coupled with something specific like

[00:09:32] Speaker 02:
law or executive order, or law or rule or regulation.

[00:09:37] Speaker 02:
That's throughout the statute.

[00:09:39] Speaker 02:
And in all of those situations, the word law is being used no longer generically.

[00:09:45] Speaker 02:
But we most often use the word law.

[00:09:48] Speaker 02:
I've been teaching law for 43 years.

[00:09:50] Speaker 02:
I don't teach statutes, sir.

[00:09:52] Speaker 00:
This is a court of law, the normal music.

[00:09:54] Speaker 00:
Do you think that the term law, as you interpret it, would include

[00:10:00] Speaker 00:
agency policies, informal agency policies.

[00:10:03] Speaker 02:
No, Your Honor, there's a distinction between kinds of lit, not even all regulations.

[00:10:09] Speaker 02:
The Supreme Court in Chrysler, which establishes this general rule that the plain meaning of the word law includes as regulations, talks about substantive regulations, legislative regulations of the type that we have involved here.

[00:10:25] Speaker 02:
There are lots of regulations, not even all executive orders.

[00:10:28] Speaker 02:
It's pretty clear that not every executive order, but certainly pronouncements of a court are law.

[00:10:40] Speaker 02:
In addition to this explicit use of law that I've mentioned to you, I've mentioned just one of the provisions right immediately prior to this one, where obviously the word law is being used generically.

[00:10:57] Speaker 02:
Then let's go to the one next ahead of it.

[00:11:01] Speaker 02:
The word is lawfully, but this is the right to testify.

[00:11:06] Speaker 02:
on behalf of someone.

[00:11:08] Speaker 02:
And the word is lawfully.

[00:11:10] Speaker 02:
That's an obvious generic use of the word law.

[00:11:14] Speaker 00:
My question then is why, if Congress intended to have the scope of the refusal right to be as broad as lawfully would suggest, they had a word they'd use

[00:11:30] Speaker 00:
25 words earlier that they could have plugged in there and solved that problem unambiguously.

[00:11:35] Speaker 00:
What is a better word?

[00:11:37] Speaker 00:
Lawfully is a much better word.

[00:11:38] Speaker 00:
We wouldn't be here if they had put lawfully in there instead of violate a law and just said to act unlawfully.

[00:11:45] Speaker 02:
Certainly the legislative history is very clear that the purpose of this, this gets to my fourth point, the remedial purpose here is to have government employees acting lawfully.

[00:11:56] Speaker 02:
The findings

[00:11:57] Speaker 02:
and purpose says that this section is here to help eliminate wrongdoing in government.

[00:12:04] Speaker 02:
It doesn't say to help.

[00:12:06] Speaker 04:
But there is a lot in the legislative history, to the extent we even get to the legislative history, there's a lot in the legislative history that supports the notion that Congress was trying to draw a balance, that they wanted to have the right to disobey, but they also wanted to make sure that it wasn't untethered.

[00:12:25] Speaker 04:
And they wanted to make sure that it wasn't completely open ended because of the need to have some kind of coordination in government.

[00:12:33] Speaker 04:
So the mere fact that the whistleblower statute was concerned about lawful activity doesn't mean that this provision in this section is to be read as broadly as you said.

[00:12:47] Speaker 02:
Well, Your Honor, the balance was this.

[00:12:50] Speaker 02:
As to the rest of the whistleblower statute, the disclosure

[00:12:53] Speaker 02:
The employee is protected if the employee reasonably believed that it was proper to disclose.

[00:13:01] Speaker 02:
That's the balance that's being taken here.

[00:13:04] Speaker 02:
Your Honor, it's very clear the balance is not on the issue of whether it's lawful or not.

[00:13:09] Speaker 02:
It's whether there's a reasonable belief.

[00:13:11] Speaker 02:
So the employee is not protected.

[00:13:12] Speaker 02:
The employee is wrong here.

[00:13:14] Speaker 02:
And this order is not unlawful.

[00:13:16] Speaker 02:
The employee is not protected.

[00:13:18] Speaker 02:
That is the balance.

[00:13:21] Speaker 02:
I give on

[00:13:23] Speaker 02:
page 12 of my blue brief and gray brief, 10 hypotheticals of potential wrongdoing.

[00:13:33] Speaker 02:
Remember, the statute here is to eliminate wrongdoing.

[00:13:36] Speaker 02:
There are 10 examples there of wrongdoing.

[00:13:40] Speaker 02:
And none of those, if the employee follows the order, none of those involve violations of a statute except the last one, the building code of Peoria.

[00:13:52] Speaker 02:
All of those are gross violations, and they're violations of the sort that the employee would have no particular incentive to grieve.

[00:13:59] Speaker 02:
So forget obey and grieve.

[00:14:03] Speaker 02:
Those hypotheticals are situations where maybe even the employee likes the illegal order.

[00:14:08] Speaker 02:
That assisted US attorney

[00:14:10] Speaker 02:
who's told not to turn over data required to be produced by the criminal rule procedure, he may be secretly happy.

[00:14:19] Speaker 02:
So to interpret this, to not include court orders, decisions of the president and other types

[00:14:30] Speaker 02:
of embodiments of the law would defeat the purpose of the Ristleblower Statute, which is to promote and to eliminate wrongdoing in government.

[00:14:40] Speaker 02:
There's not one word in the legislative history that suggests that Congress intended to limit this to statutes, and that is the standard.

[00:14:49] Speaker 02:
That is the standard.

[00:14:50] Speaker 02:
The word law, every sense Chrysler in a statute includes the regulations

[00:14:57] Speaker 02:
in the absence of a clear shoring of contrary legislative aid.

[00:15:01] Speaker 03:
Well, the question here is whether or not the text of the act provides such a clear show.

[00:15:06] Speaker 02:
That is the issue, Your Honor, and I think it does.

[00:15:09] Speaker 02:
I think the text, especially that veteran's preference.

[00:15:11] Speaker 03:
Well, I mean, Judge Bryson's been pushing you on that.

[00:15:14] Speaker 03:
I didn't say why.

[00:15:15] Speaker 03:
If you're right, why did this ambiguity get left here?

[00:15:20] Speaker 02:
Because if the court

[00:15:23] Speaker 03:
If the Congress had said... The other places in the statute, when they say the word law, you agree it means law.

[00:15:29] Speaker 03:
It doesn't mean regulation, ruling, or anything else.

[00:15:32] Speaker 02:
Most places, I don't agree, Your Honor.

[00:15:34] Speaker 02:
The only places where I can see that it means statute is when it is combined with a list of other types of law.

[00:15:44] Speaker 02:
In every other place in the statute, I believe it's used generically.

[00:15:48] Speaker 02:
The only time is that's a pretty consistent convention.

[00:15:52] Speaker 02:
that when the word law is, and Chief Judge Roberts explains that, when the word law is combined with regulation or rule or some executive order or some combination thereof, then it takes on the more limited meaning.

[00:16:12] Speaker 02:
And in every other place in this statute, and I know it has a generic meaning.

[00:16:19] Speaker 02:
As we normally... Okay, over your time.

[00:16:21] Speaker 02:
We'll give you two minutes for rebuttal.

[00:16:28] Speaker 04:
Okay, Mr. Dogger, you have eight minutes.

[00:16:31] Speaker 01:
May it please the court.

[00:16:33] Speaker 01:
In order to accept the petitioner's theory that law in the statute means any legal authority, the court would have to conclude that Congress intended to supersede the

[00:16:45] Speaker 01:
obey now, agree of later rule, which is long established and goes back to this court's predecessor court, the Court of Claims.

[00:16:53] Speaker 00:
Well, they clearly intended to supersede it, at least in part.

[00:16:57] Speaker 00:
The question is, how broadly was this superseding?

[00:17:01] Speaker 00:
So to say that Congress couldn't have intended to supersede the rule, of course they intended to supersede it.

[00:17:06] Speaker 00:
That's nobody debates that they did, right?

[00:17:09] Speaker 01:
But there is a huge difference between law

[00:17:12] Speaker 01:
as defined as a statute and law defined as any binding legal authority.

[00:17:16] Speaker 01:
That would even include collective bargaining agreements and the MSPB would be in the position of refereeing between

[00:17:24] Speaker 01:
disputes between supervisors and their subordinates about the meaning of provisions of a collective bargaining agreement, for example.

[00:17:31] Speaker 01:
Not to mention regulations.

[00:17:33] Speaker 01:
Just sweeping in regulations is significant.

[00:17:35] Speaker 01:
There's 50 titles to the Code of Federal Regulations.

[00:17:39] Speaker 01:
There's some 200 volumes.

[00:17:40] Speaker 01:
So just adding sweeping regulations is significant.

[00:17:44] Speaker 01:
And so there needs to be given some meaning to the fact that law, rule, regulation,

[00:17:52] Speaker 01:
is found throughout the whistleblower protection act about twenty-some times, nine times in this provision, this section 2302.

[00:17:58] Speaker 00:
Do you think the constitution is a law?

[00:18:03] Speaker 01:
We don't advocate a position either way on that.

[00:18:06] Speaker 01:
It may well be a law.

[00:18:08] Speaker 01:
It would make sense to me.

[00:18:10] Speaker 01:
It's not an issue here.

[00:18:12] Speaker 01:
It may well be considered a law given that the constitution is the highest law in the land.

[00:18:18] Speaker 01:
As for everything else, executive orders

[00:18:21] Speaker 01:
I think McLean made pretty clear that executive orders are not within the definition of law through the reasoning that it went through.

[00:18:28] Speaker 01:
In fact, the court in McLean reasoned that law must mean enactment by Congress rather than just any authority.

[00:18:39] Speaker 00:
What do you think of the reference to law in the applicable provisions of law language that's used in

[00:18:50] Speaker 00:
B9C.

[00:18:53] Speaker 00:
That's the one immediately before the paragraph that is involved here.

[00:18:59] Speaker 00:
Does that refer to just statutes, or does that refer to something broader than just statutes?

[00:19:04] Speaker 01:
The consistent reading would be that that also refers to just statutes.

[00:19:10] Speaker 01:
And I think it's important that the entire act be read in a clear and consistent manner

[00:19:16] Speaker 01:
Because when we come to this provision, we can- Now, you wouldn't make the same argument.

[00:19:20] Speaker 00:
I take it with respect to the term lawfully.

[00:19:24] Speaker 00:
Well, lawfully, it's- Well, maybe I'm wrong.

[00:19:27] Speaker 00:
Maybe you would make that argument.

[00:19:28] Speaker 00:
What's your argument with respect to lawfully?

[00:19:30] Speaker 01:
For one thing, I think it's a much closer case with the word lawfully.

[00:19:32] Speaker 00:
Really?

[00:19:33] Speaker 00:
The word lawfully, you think, doesn't suggest that if it's permissible under a court order, for example,

[00:19:45] Speaker 00:
that that would fit within B, testifying or otherwise lawfully assisting an individual if a court orders you to testify.

[00:19:54] Speaker 00:
You testify lawfully, do you not?

[00:19:57] Speaker 01:
It could be read that way.

[00:19:59] Speaker 00:
Yeah, it sure could.

[00:20:04] Speaker 00:
I would think that that's kind of a compelling reading, isn't it?

[00:20:09] Speaker 01:
I'm even accepting that reading of it as a generic, all-encompassing word

[00:20:14] Speaker 01:
The Congress did not choose to use the word lawfully in the provision we're talking about here.

[00:20:20] Speaker 01:
Instead, it chose to use the phrase violate a law.

[00:20:24] Speaker 03:
What do you do with your adversaries' hypotheticals?

[00:20:27] Speaker 03:
You can make them go on and on and on.

[00:20:31] Speaker 03:
Doesn't it seem unreasonable to you that you have a situation where someone is refusing to obey a order based on a regulation or a ruling?

[00:20:45] Speaker 01:
All of this is against the backdrop, and Congress was aware of this, against the backdrop of the obey now, grieve later rule, which does have some built-in exceptions, although the very narrow exceptions.

[00:20:58] Speaker 01:
There's an exception for imminent danger, for example.

[00:21:03] Speaker 01:
Many of the hypotheticals in the petition brief deal with imminent danger.

[00:21:08] Speaker 01:
For example, someone trying to bring orders to allow a gun through the TSA area at the airport.

[00:21:14] Speaker 01:
Well, that would cause imminent danger.

[00:21:16] Speaker 01:
So that's within an existing exception to the obey now, grieve later rule.

[00:21:21] Speaker 01:
There's another exception for clearly unlawful.

[00:21:24] Speaker 01:
And that seems to mean that there's no question between the supervisor and the subordinate that the order is going to violate a law.

[00:21:35] Speaker 01:
For example, if my supervisor ordered me to deliver something to the court and he said, go through every red light on the way,

[00:21:42] Speaker 01:
we would both understand that he's asking me to do something clearly unwellful.

[00:21:46] Speaker 01:
And then the third exception that I've seen in the case law is for irreparable harm, which is where someone is ordered to do something, for example, shred documents, where there's no way to go back in time and fix that.

[00:22:00] Speaker 01:
So there were these built-in exceptions.

[00:22:03] Speaker 00:
What this statute does... These are common law exceptions, I take it.

[00:22:05] Speaker 00:
Common, right.

[00:22:06] Speaker 01:
It's in the case law.

[00:22:07] Speaker 01:
But what this does,

[00:22:09] Speaker 01:
with the amendment in 2012 is now an employee has the right to file an individual right of action appeal and bring the matter to the MSPB.

[00:22:21] Speaker 01:
And so it's not just a matter of reporting a prohibited personnel practice to the Office of Special Counsel, which they must do, they must exhaust.

[00:22:30] Speaker 01:
But then if the investigation yields nothing, they now have this right to come to the MSPB.

[00:22:38] Speaker 01:
And under the petitioner's reading of the word law, the MSPB would be refereeing just about every dispute imaginable between a supervisor and a subordinate.

[00:22:49] Speaker 01:
And in order to find that Congress intended something that far reaching, it would seem that there would be a less subtle way of stating that than giving law multiple meanings throughout section 2302.

[00:23:07] Speaker 03:
It goes against the presumption that... There's nothing in the 2012 legislation that suggests that Congress had its eye on this problem, right?

[00:23:17] Speaker 01:
You mean in the legislative history?

[00:23:18] Speaker 03:
You're making an argument to say, well, they opened the door at the MSPB.

[00:23:22] Speaker 03:
They couldn't have possibly meant to open the door for a violation of anything other than just law.

[00:23:28] Speaker 03:
There's no discussion in the legislative history.

[00:23:31] Speaker 03:
That's a reasoned argument you're making.

[00:23:35] Speaker 01:
Well, I think everything

[00:23:37] Speaker 01:
do with this provision is against the backdrop of the case law involving the obey now, grieve later rule.

[00:23:45] Speaker 01:
And so we can, we can assume that Congress is aware of that rule.

[00:23:49] Speaker 01:
It's so well established.

[00:23:50] Speaker 04:
But does it really make sense that the Congress would want to limit it to just something like going through red lights?

[00:23:55] Speaker 04:
I mean, what if, what if you were told to strip search somebody?

[00:23:59] Speaker 01:
To be clear, that's, I'm talking about, when I talk about that exception, clearly unlawful, I only mean in the case law.

[00:24:05] Speaker 01:
I think that Congress means violations of statutes, which could be fuzzy.

[00:24:10] Speaker 01:
I mean, I think there was discussion in the hearings about whether that went too far, violations of statutes.

[00:24:17] Speaker 01:
So the MSP will have to referee a little bit here in deciding whether a statute was violated.

[00:24:28] Speaker 01:
So that is broader than the existing exception in the case law for clearly unlawful or unlawful on its face.

[00:24:35] Speaker 01:
It's phrased different ways.

[00:24:38] Speaker 01:
So I think this is a broader right.

[00:24:40] Speaker 04:
Does it have to be limited to statute to exclude regulations and rules?

[00:24:52] Speaker 01:
Well, that is how, well, in McLean, that's how the Supreme Court reasoned it.

[00:24:56] Speaker 01:
They reasoned that it would have to be

[00:24:58] Speaker 01:
an enactment of Congress based on the fact that in B-8, you have law used in the same sentence, and there's an or in between law and executive order.

[00:25:09] Speaker 01:
So you have on the one side, you have an act of Congress prohibiting disclosure.

[00:25:13] Speaker 01:
On the other side, you have the president prohibiting disclosure.

[00:25:16] Speaker 01:
And the court reasoned, well, it only makes sense if this is going to the level of the president that this isn't, agency heads cannot prohibit disclosures through regulations.

[00:25:26] Speaker 04:
There's a lot more context.

[00:25:28] Speaker 04:
for the McLean decision than there is for this decision in terms of the language itself, right?

[00:25:33] Speaker 01:
There is more context because that language goes back to 1978, whereas we're talking about a slightly newer language that was first put in in 1989.

[00:25:43] Speaker 01:
However, there's a presumption that we should read statutes in a clear, consistent manner and give identical words, identical meaning each time the word appears in the statutes.

[00:25:56] Speaker 04:
Your time is up.

[00:25:57] Speaker 04:
We need up Ms.

[00:25:58] Speaker 04:
Bond's time.

[00:25:59] Speaker 04:
Ms.

[00:25:59] Speaker 04:
Bond, you'll have seven minutes.

[00:26:08] Speaker 05:
May it please the court?

[00:26:10] Speaker 05:
Dr. Rainey's counsel opened argument by arguing that the link here between law, rule, or regulation is too far away from the right to disobey, which includes only law.

[00:26:23] Speaker 05:
But the Supreme Court's decision in IRS v. FLRA

[00:26:27] Speaker 05:
was confronted with one statutory section that included the word law and another one approximately three sections later that included law, rule, or regulation.

[00:26:37] Speaker 05:
And even there, when the phrases were in different sections of the same act, the Supreme Court still held that the only reasonable interpretation of Congress using those different terms was that law did not include rule and regulation.

[00:26:51] Speaker 05:
So here, the terms are used in much closer proximity.

[00:26:56] Speaker 05:
They are used, the full list, law, rule, or regulation is used nine times within section 2302, which contains the right to disobey.

[00:27:05] Speaker 05:
It's also used in subsection B, which contains the right to disobey, and it's included in subsection B9A specifically, which is mere lines above B9D that contains the right to disobey.

[00:27:20] Speaker 05:
So this is much closer than the situation in IRS, the FLRA,

[00:27:24] Speaker 05:
And it is in close proximity, as the court held was the case in the claim.

[00:27:30] Speaker 04:
All right.

[00:27:31] Speaker 04:
What's your response to my question that has Mr. Gawder on that is, does law have to be limited to statute in order to exclude rule or regulation?

[00:27:41] Speaker 05:
No.

[00:27:41] Speaker 05:
I don't think there's any need to resolve that in this case.

[00:27:44] Speaker 05:
This case, I think, is best resolved by focusing on the fact that Congress specifically mentioned rule and regulation elsewhere in the statute.

[00:27:54] Speaker 05:
And it omitted that in the right to disobey.

[00:27:57] Speaker 05:
So to accept Dr. Rainey's position, the court would have to insert the word rule or regulation into the right to disobey where Congress intentionally omitted it.

[00:28:11] Speaker 04:
So is that a better argument than saying that McLean actually decides this issue?

[00:28:21] Speaker 05:
Well, McLean

[00:28:23] Speaker 05:
The reasoning in McLean applies here.

[00:28:25] Speaker 05:
I mean, I'm not sure I understand your question.

[00:28:27] Speaker 04:
Well, McLean had a lot more context in terms of the language that it was analyzing.

[00:28:34] Speaker 04:
We just have one word.

[00:28:36] Speaker 04:
We don't have it juxtaposed against an executive order, which would imply Congress versus the executive.

[00:28:43] Speaker 04:
But here we don't have that.

[00:28:45] Speaker 04:
So is your argument really more that because it knew how to mention rules and regulations when it wanted to,

[00:28:52] Speaker 04:
Congress, by not mentioning it, must have meant to exclude it?

[00:28:56] Speaker 05:
Well, our argument is twofold.

[00:28:58] Speaker 05:
McLean did mention the juxtaposition of executive order.

[00:29:02] Speaker 05:
But first and foremost, in its decision, it addresses this presumption of intentional omission.

[00:29:07] Speaker 05:
It notes three instances throughout Section 2302, not just in VA, not just in the right to disclose.

[00:29:15] Speaker 05:
The Supreme Court was focusing on Congress's use of law, rule, or regulation in Section 2302.

[00:29:22] Speaker 05:
It expressly mentioned subsection B9A, which is close to B9D, which contains the right to disobey.

[00:29:30] Speaker 05:
B9A contains the list, law, rule, or regulation.

[00:29:32] Speaker 05:
So the Supreme Court was not focused myopically on the juxtaposition with executive order or even specifically on the right to disclose.

[00:29:42] Speaker 05:
It was considering the fact that Congress was

[00:29:45] Speaker 05:
intentionally and repeatedly referring to law, rule, or regulation when it wanted to be inclusive and include all of those terms, but that it referred to law by itself when it wanted to limit and exclude rule or regulation.

[00:30:01] Speaker 00:
Let me ask you the same question I asked Mr. Calvert.

[00:30:03] Speaker 00:
Suppose that the language of paragraph D had said for refusing to obey an order that would require the individual to act unlawfully.

[00:30:13] Speaker 00:
You wouldn't argue that that

[00:30:14] Speaker 00:
limited his protection just to statute, would you?

[00:30:19] Speaker 05:
I don't think so.

[00:30:20] Speaker 05:
And I wouldn't want to bind us.

[00:30:22] Speaker 00:
I'm sorry.

[00:30:23] Speaker 00:
You don't think that it would limit it in that way?

[00:30:24] Speaker 05:
I don't think it would limit in the same way.

[00:30:26] Speaker 05:
I think the most important thing is that Congress was using the list, law, rule, or regulation.

[00:30:33] Speaker 05:
Maybe in another case, if Congress elsewhere used lawfully, comma, in compliance with regulation, comma, and in compliance with rule, and then in one section said just lawfully, then there would be maybe an analogy to what we have here.

[00:30:46] Speaker 05:
Whereas here, we have the word law by itself,

[00:30:49] Speaker 05:
we have that word has already been interpreted by the Supreme Court, that identical word, not just a root of the word, has been interpreted by the Supreme Court in 2302B8 close to 2302B9.

[00:31:07] Speaker 05:
So not only do we have Congress's reasoning in the claim that we can follow here almost point by point,

[00:31:16] Speaker 05:
But we also have the presumption of consistent interpretation that Congress will use the same term the same way throughout the statute.

[00:31:24] Speaker 05:
And I would like to briefly address the argument that this has absurd results.

[00:31:30] Speaker 05:
There are several responses.

[00:31:31] Speaker 05:
One is that to the extent that any of the examples involve rules or regulation, there would be a right to disclose.

[00:31:38] Speaker 05:
those kinds of violations.

[00:31:40] Speaker 05:
And Congress, the keystone and heart of the WPA is the right to disclose provision.

[00:31:46] Speaker 05:
Congress knew how to be broad and expansive, and it did that in the right to disclose by saying employees can disclose any violation of any law, rule, or regulation.

[00:31:56] Speaker 05:
That was very broad, in contrast to the right to disobey, which just mentions violation of law by itself.

[00:32:03] Speaker 05:
A law.

[00:32:05] Speaker 05:
Even better, a law.

[00:32:06] Speaker 05:
And it makes sense to distinguish between statutes and regulations in that way.

[00:32:13] Speaker 05:
Congress could very well have thought that it was best to leave to agency supervisors and managers discretion how those supervisors and managers frequently have the authority to promulgate regulations and internal agency rules.

[00:32:28] Speaker 05:
So it makes sense to vest them with discretion and how to apply it to their own employees, whereas Congress could have thought

[00:32:34] Speaker 05:
when it comes to its own legislation and its own enactments, employees cannot be ordered to violate Congress's own legislation.

[00:32:44] Speaker 05:
So it's nothing absurd about that.

[00:32:46] Speaker 00:
Let me turn your attention back to another paragraph, paragraph C, of cooperating with or disclosing information to the inspector general of an agency of special counsel in accordance with applicable provisions of the law.

[00:32:59] Speaker 00:
I mean, suppose the Department of Justice, suppose there's no statute.

[00:33:03] Speaker 00:
I don't know whether there is or not that governs disclosures to inspector generals.

[00:33:08] Speaker 00:
But the Department of Justice, let's say, says that it has regulations that say that you will cooperate with an inquiry of the inspector general.

[00:33:19] Speaker 00:
And you do so.

[00:33:20] Speaker 00:
Are you not protected there, in your view, by the applicable provisions of law?

[00:33:26] Speaker 00:
Do you read, in other words, law there to mean the same thing that you say A law means in D?

[00:33:32] Speaker 05:
I think law does.

[00:33:35] Speaker 05:
Under the reasoning of McLean and the consistent interpretation, I think it would mean statute there, but I don't necessarily think that would limit the employee's right.

[00:33:44] Speaker 05:
I think it would simply mean that as long as the employee, and this is

[00:33:48] Speaker 05:
just my own thoughts, it's not an issue here, but I think as long as the employee there is acting in compliance with statute, they... Even if there is no statute... Well, I'm not sure whether it's true, but suppose there is no statute.

[00:34:01] Speaker 00:
It may be that there is, I don't know.

[00:34:03] Speaker 00:
But if there's no statute that says employees may or must cooperate with the Inspector General, so if there's loads of regulations, each agency has a regulation of that effect, are you saying that

[00:34:14] Speaker 00:
that person has no protection even though the regulations of its own agency say you must cooperate?

[00:34:21] Speaker 05:
I think that the employee would be protected as long as what they were doing is not inconsistent with the provision of statute.

[00:34:28] Speaker 00:
So if it's also consistent with regulation that would... So it's in accordance with provisions of law if it's not in

[00:34:37] Speaker 00:
going against the provisions of law, as you see it in the provisions of the law being statute.

[00:34:41] Speaker 04:
I think that would be, I think, the best way to reconcile it in the claim.

[00:34:43] Speaker 04:
Wasn't one of the primary points in the claim was that they wanted to protect whistleblowers.

[00:34:49] Speaker 04:
They wanted to make sure agencies couldn't pass rules or regulations that prohibited disclosure.

[00:34:54] Speaker 04:
So in that case, they were saying, we need to carry out Congress's overarching desire to protect whistleblowers.

[00:35:01] Speaker 04:
Here, we're doing the opposite, if we accept your argument.

[00:35:05] Speaker 05:
Well, there were competing policy interests in the claim, just like there are competing policy interests here.

[00:35:10] Speaker 05:
The government was arguing in the claim that there were national security concerns with interpreting law the way the Supreme Court ultimately did.

[00:35:18] Speaker 05:
And the court, in responding to that policy analysis, said, well, that's a legitimate policy concern, but we follow what Congress enacted.

[00:35:27] Speaker 05:
We're not going to change Congress's

[00:35:30] Speaker 05:
legislation simply because of a policy reason.

[00:35:33] Speaker 05:
And to be sure, it also mentioned the policy goal of protecting whistleblowers.

[00:35:39] Speaker 05:
But it also, it certainly, it can't be said that the Supreme Court focused on legislative history.

[00:35:45] Speaker 05:
Its focus was plainly on the language of the statute.

[00:35:50] Speaker 05:
And it even omitted, the Supreme Court omitted to mention that, may I?

[00:35:56] Speaker 05:
Yes, go ahead.

[00:35:58] Speaker 05:
The Supreme Court omitted to mention

[00:36:00] Speaker 05:
that elsewhere in the legislative history, Congress had previously in the rights disclosed, as this court explained in its decision in McLean, the rights disclosed originally had an exception for disclosure specifically prohibited by law, rule, or regulation.

[00:36:17] Speaker 05:
And Congress changed that in the later version of the bill to specifically prohibited by law.

[00:36:23] Speaker 05:
So that simply shows that Congress knew very well what it was doing when it was using law as opposed to the list.

[00:36:29] Speaker 05:
Yet the Supreme Court did not include that legislative history.

[00:36:32] Speaker 05:
The Supreme Court's focus definitely was on the plain language of the statute.

[00:36:36] Speaker 05:
And that plain language counsels affirmance here of the board's decision.

[00:36:41] Speaker 04:
Thank you.

[00:36:45] Speaker 04:
All right, counsel, we'll actually give you three minutes.

[00:36:47] Speaker 04:
Thank you.

[00:36:48] Speaker 02:
First of all, there is no general obey and grieve rule that applies to an order that is illegal.

[00:36:59] Speaker 02:
I don't know of any authority that takes any of the hypotheticals that I've listed there.

[00:37:06] Speaker 02:
that has applied an obey and a grief.

[00:37:11] Speaker 02:
And in fact, these are situations here.

[00:37:13] Speaker 02:
None of these, the employee would have an even incentive to grieve.

[00:37:17] Speaker 02:
The employee would just simply comply.

[00:37:19] Speaker 02:
But the obey and disagree are labor disputes and matters of that sort.

[00:37:26] Speaker 02:
But illegal orders, improper rules that violate regulations, I've never seen the authority.

[00:37:35] Speaker 02:
We've continued to hear the list described as broad.

[00:37:41] Speaker 02:
The list, law, rule, regulation, is finite, is limited.

[00:37:45] Speaker 02:
That's why it was not used in the right to disobey, because we can look at the statute.

[00:37:52] Speaker 02:
We know they at least intended to cover executive orders, but probably much more.

[00:37:58] Speaker 02:
So Congress did not use the finite list, law, rule, regulation, because it was too limiting.

[00:38:06] Speaker 02:
It was under-inclusive.

[00:38:09] Speaker 02:
And finally, I still am not clear

[00:38:12] Speaker 02:
what the government's position is with respect to certain other matters.

[00:38:17] Speaker 02:
For example, there's a hypothetical there involving a federal rule of criminal procedure.

[00:38:23] Speaker 02:
Well, the brief says,

[00:38:25] Speaker 02:
It might get in.

[00:38:27] Speaker 02:
It was enacted pursuant to legislative authority.

[00:38:30] Speaker 02:
It has the full force and effect of law.

[00:38:32] Speaker 02:
So is the federal acquisition regulation enacted pursuant to legislative authority.

[00:38:38] Speaker 02:
It has the full force and effect of law.

[00:38:40] Speaker 02:
So I don't know, when we get to some rules, what their position is.

[00:38:45] Speaker 02:
Finally, what is their position as to statutes?

[00:38:50] Speaker 02:
In the earlier proceedings, the position seemed to be that law meant statute mean an enactment by a legislative body.

[00:38:58] Speaker 02:
Now they seem to be saying that it means only federal statute.

[00:39:02] Speaker 02:
So are they seriously arguing that federal employees do not have to follow state criminal statutes, state health laws?

[00:39:10] Speaker 02:
I mean, talking about defeating the purpose of the statute, the statute was to eliminate wrongdoing

[00:39:17] Speaker 02:
In government, this interpretation would argue for, would promote, it would exactly defeat the purpose of this legislation.

[00:39:27] Speaker 02:
This was a remedial legislation where Congress saw a problem and Congress provided a remedy for it and put it in a provision that's surrounded by generic uses of the word

[00:39:43] Speaker 02:
a law and with the word law meaning statute only in those situations, which there are several of them, where it intends to have the limited list of law, rule, and regulation.

[00:39:55] Speaker 02:
That's the limitation.

[00:39:57] Speaker 02:
But throughout here, the words concept lawfully and law and the legislative history, this was about not encouraging as their position would be, but discouraging the kind of

[00:40:13] Speaker 02:
improper conduct that's mentioned in my hypotheticals.

[00:40:17] Speaker 02:
OK, Mr. Gibson.

[00:40:18] Speaker 02:
Thank you.