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Can a Federal Employee Refuse an Illegal Order? What 5 U.S.C. § 2302(b)(9)(D) Protects

civil service federal employees prohibited personnel practices shaun southworth whistleblower protections
 

Can a federal employee refuse an order to break the law without being punished for it? Under federal law, most career employees can, and a story in the Washington Post this week is a reminder of why that protection matters.

What the Washington Post Reported

According to the Washington Post, about ten current and former national security officials have worked with members of Congress and others to quietly advise ten states, from both parties, on how to prepare for possible election interference by the federal government. The reported fear is troops or immigration agents at the polls. The officials did this anonymously, for fear of retaliation. The administration dismisses the reporting and says there are no such plans. Election Day is November 3.

The reporting also recounts that in April, Senator Slotkin asked Defense Secretary Hegseth whether he would refuse an order to send troops to the polls. He called it a hypothetical. When the Republican chairman pushed, his answer, as quoted, was: "I've never been ordered to do anything illegal, and I won't."

What the Law Says

A Cabinet secretary does not walk into a county election office. A career federal employee does. Federal law, 5 U.S.C. § 2302(b)(9)(D), bars punishing a federal employee for refusing an order that would require violating a law, rule, or regulation. That is a prohibited personnel practice, and it covers most career federal employees.

Why the Protection Has to Be Real

That right only means something if saying no cannot get you fired. Civil service protections are not cover for poor performers. They are cover for the employee who says, "that's illegal." The officials in this story chose to remain anonymous for fear of retaliation.

If You Are Ever Asked to Break the Law

There are strong whistleblower protections in federal law, and many federal employees do the right thing every day. If you find yourself in a situation where you are being asked to violate a law, rule, or regulation, document the order and its date, and consider speaking with legal counsel before you act. The attorneys at Southworth PC represent federal employees nationwide and worldwide.

Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. 

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