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News from the Federal Circuit: Whistleblower Protection Clarified

News from the Federal Circuit: On April 26, 2013, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in MacLean v. Department of Homeland Security, Case No. 2011-3231.  This decision is the latest in the long-running MacLean case, which was previously analyzed by Passman & Kaplan, P.C. in the Federal Legal Corner.  

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, reasoning that Mr. MacLean's disclosure was not protected by the Whistleblower Protection Act (WPA) as it was a disclosure made in violation of the laws governing protection of SSI.  Specifically, the WPA protects whistleblowers if they suffer retaliation for blowing the whistle on a "specific danger to public health or safety ", but only "if such disclosure is not specifically prohibited by law..."  The MSPB found that Mr. MacLean's disclosure was "specifically prohibited by law" as a disclosure of SSI.  In doing so, the MSPB looked at the issue of disclosures of SSI categorically and not at the specifics of Mr. MacLean's disclosures.  Mr. MacLean then appealed to the Federal Circuit.

A panel of the Federal Circuit unanimously reversed the MSPB's decision.  While the panel found that the Agency's basic charges against Mr. MacLean were substantiated, it rejected the MSPB's analysis of Mr. MacLean's whistleblower reprisal claims.  The Federal Circuit 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 Federal Circuit remanded Mr. MacLean's case to the MSPB to decide whether Mr. MacLean's specific disclosures met the requirements of protected whistleblowing under the WPA.  

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

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