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Federal Circuit's Decision Restores Cornerstone of Whistleblower Protection

April 29, 2013
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Decision in MacLean Case Hailed as Major Victory for Federal Employees

(Washington, DC) – Last Friday, the U.S. Court of Appeals for the Federal Circuit effectively restored the cornerstone for enforcement of the Whistleblower Protection Act (WPA), the key whistleblower protection law for most federal employees. The Government Accountability Project (GAP) is hailing the decision as a major victory for federal whistleblowers, and an important judicial decision outlining that statutory free speech rights trump conflicting federal agency regulations.

The court overturned a U.S. Merit Systems Protection Board (MSPB) ruling that upheld the termination of Federal Air Marshal (FAM) and GAP client Robert MacLean. MacLean successfully warned the media, public and congressional officials of Transportation Security Administration (TSA) plans to cancel Marshal coverage during a 2003 al Qaeda terrorism plot – confirmed by intelligence agencies – that involved suicide airplane hijackings in what would have been a more ambitious effort than the tragic events of September 11, 2001.

Last Friday's decision restores WPA rights for MacLean, as the court ruled that he did not cross the legal boundary that would negate his right to make public disclosures – specifically, there had been no specific congressional ban on MacLean's disclosure, either directly or indirectly. The Federal Circuit sent the case back to the MSPB to decide whether MacLean reasonably believed his warning evidenced a substantial and specific threat to public health or safety. As MacLean's whistleblowing sparked the correction of a conceded mistake that would have removed Marshals from airline flights vulnerable to hijackings, MacLean's attorneys – GAP Legal Director Tom Devine and Lawrence Berger of the Federal Law Enforcement Officers Association (FLEOA) – are highly confident that the MSPB decision will be favorable.

Regarding the decision, MacLean commented:

This decision is a result of the colossal team-effort by the dedicated staffs of GAP, FLEOA, Project On Government Oversight, the Office of Special Counsel, and 17 Members of Congress. This decision is not only vindication for me, but also for my friends, my family, and the countless law enforcement officers who supported me since the beginning. With this decision and the new Whistleblower Protection Enhancement Act, federal workers should now have significantly more confidence to expose wrongdoing without the fear of being marginalized or suffering financial hardship. An honest employee with the fortitude to expose corruption should expect to make sacrifices, but no one should have to endure seven or more years of aggravation.

GAP's Tom Devine also commented:

This victory restores access to justice for a modern, unsung hero whose rights have been out in the cold for seven years. Robert MacLean may well have prevented a more ambitious rerun attack of al Qaeda's 9/11 attack, when the government was about to go AWOL. Legally, the Federal Circuit restored enforceability for the Whistleblower Protection Act's public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights. Even when delegating authority, Congress cannot give agencies discretion to weaken those rights without specific legislative instruction. Congress may not pass the buck with sweeping delegations that permit agency gag orders. The Act's Achilles heel has healed.

MacLean's Case – Background

In July 2003, U.S. and foreign intelligence and counterterrorism units confirmed imminent al Qaeda plans for an ambitious rerun of 9/11. Long-distance flights were to be hijacked for multiple targets, including cities in Europe and America's West Coast. All FAMs were called in for emergency training, and told this would be their ultimate test. Inexplicably, two days after receiving training, all FAMs received a text message to cancel all long distance missions – the same flights targeted for hijacking. There was no explanation beyond making sure to cancel hotel reservations to avoid cancellation fees.

MacLean unsuccessfully sought an explanation from Federal Air Marshal Service management and the Department of Homeland Security (DHS) Office of Inspector General (OIG). He then anonymously disclosed the orders to MSNBC, which promised to alert Congress. After the release of the MSNBC story, President Bush could not explain the cancelation at a press conference, and there were numerous congressional expressions of outrage and threatened hearings. Within 24 hours, DHS said the orders were a mistake and restored coverage, preventing the hijacking.

Following a 2004 television interview that MacLean gave, the TSA learned that the anonymous source was MacLean. The agency retroactively marked the previously-unrestricted text message as non-public Sensitive Security Information (SSI) under agency regulations, and a year later, fired MacLean for threatening national security by publicly releasing it.

The Decision

Ultimately, a July 2011 MSPB decision framed the issues for last Friday's ruling. Since passage of the Civil Service Reform Act of 1978 and in the WPA, whistleblowers have had the right under the free speech provision in both laws, 5 USC 2302(b)(8), to publicly disclose misconduct unless it is classified (not an issue here), or its release is "specifically prohibited by law." In all legislative history, Congress made clear that by "law" it meant "statute," and legally distinguished "law" from "rules and regulations." The MSPB's ruling, however, said that MacLean's warning was barred by "law," because in the Aviation Transportation Security Act (ATSA), Congress ordered DHS to issue SSI secrecy regulations "if the Secretary decides disclosing the information would ... be detrimental to public safety." In lay terms, the MSPB explained that by ordering the Secretary to issue regulations, Congress had delegated its authority. That would make the regulations equivalent to statutes passed by Congress. As a result, the MSPB concluded that MacLean's public disclosure violated "law," and he was not entitled to WPA rights. Were the decision to stand, the MSPB would have created an "agency veto" loophole whenever Congress orders agency regulations to control the release of information.

The Federal Circuit reversed the decision, because the loophole fails the WPA's requirement for specificity. The ATSA instruction gives the Secretary a blank check to ban release of any information he subjectively believes could harm public safety. The court said under that circumstance, the public gag came from the Secretary's SSI regulation, not a "law" passed by Congress.

The court did not rule out the possibility that employees can lose whistleblower rights when Congress orders agencies to issue secrecy rules. But it emphasized another core principle of the free speech provision: even statutory restraints must "specifically prohibit" public release. It traced the original 1978 legislative history to explain that Congress can delegate secrecy authority if it imposes specific criteria for exercising that discretion. The court pointed to the Trade Secrets Act and Internal Revenue Code as models where Congress established particular criteria for secrecy and privacy restraints on public disclosure, qualifying associated agency rules as "law" that restricts whistleblower rights.

The ruling was a relief for good government activists, because the MSPB decision had threatened enforcement of new WPEA reforms approved unanimously last year after a 13-year legislative campaign. The ruling also reinforces the WPEA's "anti-gag" provisions, which directly establish the supremacy of whistleblower rights over agency gag orders. The MacLean loophole would have created a contradiction for its enforcement.

In the aftermath of the WPEA and the Federal Circuit ruling, Devine concluded, "Rights against bureaucratic gag orders have never been stronger. Agencies no longer can impose secrecy without specific authority from Congress."

Credits

Support for MacLean's legal struggle has not been limited to his counsel at GAP and FLEOA. Former representative Dennis Kucinich (D-Ohio), current Rep. Carolyn Maloney (D-NY), the Office of Special Counsel, and the Project On Government Oversight submitted amicus briefs to the MSPB supporting MacLean's case. House Government Oversight and Reform Committee Ranking Member Elijah Cummings (D-MD) joined Representatives Kucinich and Maloney in submitting an amicus brief to the Federal Circuit. Former Representative Todd Platts' (R-PA) WPEA floor statement on the relevant legal issues was featured prominently in judicial questioning at oral arguments for the appeal. MacLean has received non-legal and legal support from FLEOA, and from the whistleblower rights community.

GAP would also like to thank MacLean for his steadfast drive to protect whistleblowers. MacLean was an active, marathon advocate for passage of the WPEA, along with Marine Corps whistleblower Franz Gayl. MacLean also expresses appreciation to Members of Congress whose prompt response to his disclosure led to restoration of air marshal coverage during the threat. Their statements, made during that period, are linked here.

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