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Recent highlights of Government Program Area:
GAP continues to investigate, prepare and bring high-profile legal cases to test the whistleblower provisions of both the WPEA for federal employees and the National Defense Authorization Act (NDAA) for federal contractors. These efforts include the following:
Robert MacLean: GAP won a landmark case in civil service history when all the judges of the Federal Circuit Court of Appeals affirmed the original panel of judges that heard the case – MacLean v. TSA. MacLean was an air marshal with the Transportation Safety Administration who had disclosed to a Senate Committee and the media that the agency had decided to stop putting air marshals on cross-country flights during a terrorist alert for budgetary reasons. Congressional and public responses to that plan were so intense, TSA quickly backed off of its secret plan, but three years later fired MacLean for violating confidentiality rules involving “sensitive security information.” The case overturned a decision at the Merit Systems Protection Board (MSPB). It now holds that the Whistleblower Protection Act trumps agency efforts to put limits on the free speech and dissent rights of federal employees. Although this result might seem obvious, we were surprised by the unequivocal nature of the decision given the traditional hostility to whistleblowers at the Federal Circuit, the subject matter of national security and the sensitivity of the information released by the whistleblower. The agency had asserted that its national security mandate allowed the agency to place limitations on whistleblowers that were inconsistent with the Whistleblower Protection Act.
Unfortunately, despite a unanimous verdict by the Federal Court, the DOJ has decided to appeal the case to the United States Supreme Court. It filed a petition for a Writ of Certiorari that would allow the case to be argued before the Court. The OSC has indicated that it plans to present an amicus in support of our position.
Kaplan v. Conyers: In a case of equal importance to MacLean, the Federal Circuit went the opposite direction. There, the court sided with the Department of Defense (DoD) and the DOJ to declare that agencies have the right to designate certain jobs as “national security sensitive” and, therefore, remove from that position any civil service protection whatsoever -- even against discrimination based on race and gender. Rhonda Conyers was a cashier at the Pentagon and did not have a security clearance. GAP wrote a compelling amicus, but lost. Although this is not a whistleblower case, it is potentially devastating to whistleblowers as well as all civil service employees, wiping out 130 years of civil service precedent and legal development. It is estimated that half the jobs at the Department of Defense (DoD) fall into this category.
Department of Defense Inspector General Cases: GAP continues to hear from former inspectors general who face whistleblower persecution. These cases hold great potential to shine a light on practices that violate the rights enshrined in the WPEA.