News from the Supreme Court: On November 4, 2014, the Supreme Court will hear oral argument in the matter of Dept. of Homeland Security v. MacLean, No. 13-894. This represents the latest stage in the long-running MacLean case, which was previously analyzed by Passman & Kaplan, P.C. in the Federal Legal Corner, and in this blog.
Mr. MacLean was removed from his position as a Federal Air Marshal (FAM) after allegedly disclosing an Agency decision temporarily cancelling FAMs’ “remain overnight” missions to the press. The Agency based its removal on Mr. MacLean’s disclosure of this information, which the Agency labeled as Sensitive Security Information (SSI). Mr. MacLean appealed his removal to the Merit Systems Protection Board (MSPB), raising an affirmative defense of whistleblower reprisal. The MSPB upheld the removal, which was then reversed by the U.S. Court of Appeals for the Federal Circuit.
The Federal Circuit specifically held that the MSPB had erred in finding that Mr. MacLean’s disclosure was “strictly prohibited by law.” Mr. MacLean’s specific violation was of a rule found in Agency regulations concerning SSI, and not expressly in the underlying statute allowing the Agency to issue SSI-related regulations. The panel held that a disclosure is “strictly prohibited by law” for purposes of the WPA only if the disclosure is specifically prohibited in statute; a prohibition only found in regulations is not sufficient. The panel noted that this limitation is necessary to prevent agencies from limiting whistleblowing without Congress’ permission, in order to prevent agencies from hiding their misconduct from Congress and the public.
The parties’ briefs track the battle lines below at the Federal Circuit, turning on a question of legislative interpretation. The Solicitor General’s brief, arguing on behalf of the Department of Homeland Security, asserts that “strictly prohibited by law” includes the agency’s SSI regulations. Mr. MacLean’s brief calls for the Court to uphold the Federal Circuit’s decision finding that Congress intended “strictly prohibited by law” to solely refer to statutes.
Joining the argument were several “amicus curiae” (‘friend of the court’) briefs. Most notably, the U.S. Office of Special Counsel filed an amicus brief in support of the Federal Circuit’s decision below. This amicus brief represents the first time OSC has used the new amicus authority granted by the Whistleblower Protection Enhancement Act of 2012 to file an amicus brief at the Supreme Court.
If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan to request an initial consultation.