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"The earth is not dying. It is being killed. And those who are killing it have names and addresses." -Utah Phillips (1935-2008) folk singer, labor organizer, trainhopper, poet, and ardent anarchist. ID in alt text.

The third option for federal employees faced with illegal orders—just say ‘no’

Joshua Gotbaum examines federal employees' right to disobey unlawful orders, emphasizing whistleblower protections and risks.

Brookings

In February, several Justice Department officials resigned rather than obey a directive to drop their corruption case against New York City Mayor Adams. After they did, another DOJ official signed the order to avoid people being fired.

Complying or resigning are not the only options. Federal employees sometimes have another: In the words of Mrs. Reagan, sometimes they can “just say ‘no.’” In fact, sometimes that’s their duty.

The Trump administration has begun a broad attack on many activities of the federal government it now controls. It has acted aggressively to implement its agendas, to stop programs it disagrees with, and to fire members of the civil service on allegations of “poor performance” without evidence. Some of these actions are lawful implementation of the president’s agenda. However, as various court decisions show, many are not.

Under federal law, employees who call out violations of law, fraud, waste, or abuse receive whistleblower protections. Agencies cannot legally fire them, demote them, or remove them. Those same statutes provide a “right to disobey.” They protect employees who refuse an order because doing so would violate the Constitution, laws, agency rules, or federal regulations. Federal employees need not resign or comply. They can just say “No.”

The law doesn’t permit civil servants to disobey solely because they disagree with a policy. However, when federal employees join the federal service, they sign an oath to “… well and faithfully discharge the duties of the office … So help me God.” That oath doesn’t change from administration to administration. It clearly includes complying with the nation’s laws. If directed to do something that violates the Administrative Procedures Act, federal personnel statutes, published federal procurement rules and regulations, or an appropriation enacted by Congress and signed into law, federal personnel may legally refuse to obey and, under their oath of office, arguably must.

That right to disobey was what Congress sought to protect when it unanimously passed the Follow the Rules Act during the first Trump administration. During the first Trump administration, Congress strengthened these protections—unanimously. The original statute covered only orders that would “violate a law.” In 2017, Congress expanded that protection to include refusal to obey “an order that would require the individual to violate a law, rule, or regulation.” President Donald J. Trump signed the Follow the Rules Act into law.

Some federal officials have taken the third option and just said “No.” Before Kash Patel was confirmed as FBI Director, then-acting Director Brian Driscoll refused to fire agents guilty of no offense, other than obeying an instruction to investigate Jan. 6 rioters.

What should federal employees do when faced with an order that would violate their oath and that they reasonably believe to be unlawful? Many advise consulting a lawyer. However, faced with an immediate order, most federal employees don’t have the time or money to consult legal counsel. They must rely on their own knowledge, experience, and reasoned judgment to decide for themselves.

This administration has proven that it will fire federal employees who disobey an instruction that would have them violate the law—even though that firing would be illegal. So, many will comply even when they know they should not. However, as Mr. Driscoll shows, some will stay true to their oaths. If their legal protection—the right to disobey—were better known, more might do so. Each person who did so would slow or stop implementation of unlawful orders.

Furthermore, law-abiding-but-fired federal employees have remedies. Career civil servants who were fired, demoted, or reassigned because they have refused an order can appeal to the Office of Special Counsel (OSC), created by Congress to investigate violations of personnel law and rules. In cases where OSC believes there has been an unlawful “prohibited personnel action,” it will advise the Merit Systems Protection Board (MSPB). Congress chartered the MSPB to police the federal personnel system. It can require reinstatement into the job, retroactive back pay, and payment of legal fees.

These protections are more than just theory: Only a few days ago, the MSPB, acting on a recommendation from OSC, temporarily reinstated six provisional employees who had been fired in an apparent violation of federal rules. It’s worth noting that the Trump administration has attempted to undermine both the OSC and MSPB by removing their leaders. However, Congress by law required good cause before either can be removed, and thus far courts have overturned most of these dismissals.

So, why don’t more federal employees just say no? The main reason is that many employees cannot afford to lose their jobs and wait for reinstatement. The remedies for wrongful personnel actions can take months, even in normal times, and these are not normal times. It’s also important to note that some believe that it’s important they continue to do the other parts of their job.

But there are other reasons. Based on conversations with lawyers, advocacy groups, and public interviews, there are many:

• Some who do disobey see no benefit in publicizing that fact, as public whistleblowers can and do become public targets.
• Many don’t know they can say “No.” As of this writing, there are no descriptions of the right to disobey on the websites of major federal unions or the Partnership for Public Service.
• Advocacy groups fear being seen as giving legal advice. Some educational webinars actually start with a notice that “this is not legal advice”.
• Even some lawyers representing federal employees in wrongful personnel action cases are unaware of the law, focusing on the more widely discussed protections for whistleblowers who disclose rather than employees who refuse to act.

Federal employees confronted with orders they believe are illegal must make their own decisions—with or without legal counsel—about how to comply with their oath to the public they serve, despite the genuine personal risks. That’s a part of public service, too.