Solidarity also means solidarity with the federal employees who are being asked to violate the Constitution by the Trump Administration. Help AISC help the brave, principled federal employees who may be fired or otherwise disciplined for refusing to violate the Constitution! Here’s what AISC is doing on that front:
(1) The draft bill posted below was created by AISC to amend existing employee protections to allow federal employees to receive monetary damages if they are fired or experience adverse action for refusing to enforce a law or order that the Courts determine is unconstitutional. Print it out or copy it from our website and send it to your Congressional representative and ask them to introduce the bill!
(2) AISC is also offering to coordinate legal assistance for any employee who suffers adverse actions for refusing to violate the law – which is already prohibited by 5 U.S.C. 2302(9)(d). If you are or know someone who has been impacted by such an action, message us here, or e-mail email@example.com, with your contact information and we will be in touch. Please don’t get into details as it is not an attorney-client privileged communication!
DOWNLOAD HERE, TEXT BELOW: draft-bill
To Amend Title 5, U.S. Code, Section 2302, to provide additional protection for federal employees who suffer a prohibited adverse employment action as a result of their refusal to adhere to the directives of an Executive Order, federal statute, or regulation that is deemed to be unconstitutional by a United States Court.
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE
This Act may be cited as the “Enhanced Protection for Employees Honoring the Constitution” Act.
SECTION 2. FINDINGS AND PURPOSE
(a) Findings: The Congress finds that:
(1) The current Presidential administration has a demonstrated propensity for issuing executive orders that on their face raise serious Constitutional concerns and demanding that federal agencies implement them immediately, often with little or no guidance;
(2) The current Presidential administration has falsely claimed on at least one occasion that an executive order was reviewed and approved by the Department of Justice Office of Legal Counsel although the Acting Attorney General of the United States refused to defend it because it was facially unconstitutional;
(3) The haphazard implementation of such orders of dubious constitutionality places federal employees in the difficult position of choosing between their duty to uphold the Constitution of the United States and their duty to follow directives from their superiors, including the President of the United States and his Cabinet members;
(4) Forcing employees to choose between their jobs and their respect for the Constitution is detrimental to employee morale as well as the basic principles of law and order;
(5) The protections of 5 U.S.C. §2302(b)(9)(D), which prohibits adverse employment actions against as subordinate for “refusing to obey an order that would require the individual to violate a law” are insufficient in that they do not provide a robust remedy for individuals who experience such adverse employment actions;
(6) The Constitution of the United States of America is the highest law of the land, and any executive order or enactment that purports to require action inconsistent with the Constitution, as the Constitution has been interpreted by the United States Court, by its nature requires an employee “to violate a law” as that term is used in 5 U.S.C. § 2302(b)(9)(D).
(b) Purpose: The purpose of this Act is to provide additional protections in the form of a monetary remedy for employees who suffer adverse employment actions as a result of their refusal to carry out or implement unconstitutional laws or orders. In creating such a remedy, Congress also hopes to deter the enactment or issuance of future unconstitutional laws and orders.
SECTION 3. ENHANCED REMEDY FOR FEDERAL EMPLOYEES WHO EXPERIENCE AN ADVERSE EMPLOYMENT ACTION AS A RESULT OF REFUSING TO CARRY OUT UNCONSTITUTIONAL LAWS OR ORDERS
(a) In General: Title 5, Section 2302 of the United States Code, is hereby amended as follows:
(1) the prohibited conduct described in Section 2302(b)(9) shall be amended to read as follows (added language in bold italics):
“(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);
(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D) for refusing to obey an order that would require the individual to violate a law, including an order that would require conduct inconsistent with the United States Constitution as interpreted by the United States Courts;
(2) the following subsection shall be added to Section 2302:
“(g) Monetary Remedy for Employees Who Suffer Prohibited Employment Action Under Section 2302(b)(9)(D) Relating to Unconstitutional Laws or Orders:
(1) Any federal employee who suffers an adverse employment action prohibited by Section 2302(9)(D) by virtue or refusing to obey an order or perform an action pursuant to a law, regulation or executive order that has been, or is later, determined to be unconstitutional by a United States Court of competent jurisdiction, shall be entitled to monetary damages from the United States Government equal to three times their actual damages arising from the adverse action;
(a) for the purposes of this subsection, “actual damages” means economic damages, including lost wages, and compensatory damages for physical or mental harm experienced as a result of the prohibited employment action;
(b) a claim under this subsection accrues upon the later of
(i) the prohibited employment action; or
(ii) a final decision of a United States District Court holding that the law, regulation or executive order upon which the employee’s claim is based was deemed unconstitutional;
(c) the trebling of damages provided for in subsection (g)(1) above is mandatory based upon a finding of liability and determination of actual damages; courts shall not have discretion to raise or lower the damages multiplier;
(d) a claim that has validly accrued as described in subsection (g)(1)(b) above shall not become invalid based upon conflicting rulings from other District Courts or subsequent appellate decisions, so long as there has been at least one valid final judgment of a District Court holding the law, regulation or executive order unconstitutional.
(2) The remedy provided in this subsection (g) does not replace or invalidate any other remedy the employee may have under any other federal or state statute or common law;
(3) A claim under this subsection may be brought within any court whose exercise of jurisdiction would otherwise be valid under the United States Constitution, including the District Court for the District in which the employee resides or was employed;
(4) This subsection creates a claim for relief against the United State Government only and shall not be deemed to create a cause of action against any individual.
(5) The remedy provided herein shall apply to all claims based on prohibited actions under Section 2302(9)(D) as amended that accrued on or after January 20, 2017.”