United States Court of Appeals for the Federal Circuit

Congress has recognized that arbitrary loopholes in statutory language have
reduced whistleblowing disclosures. The 2007 Senate Committee Report on the
Whistleblower Protection Enhancement Act, legislation near passage to restore
congressional intent explained,
Although the events of September 11, 2001, have brought renewed
attention to those who disclose information regarding security lapses
at our nation's airports, borders, law enforcement agencies, and
nuclear facilities, the right of federal employees to be free from
workplace retaliation has been diminished as a result of a series of
decisions of the Federal Circuit Court of Appeals that have narrowly
defined who qualifies as a whistleblower under the WPA and what
statements are considered protected disclosures.
S. Rep. No. 110-32, at 2
Unfortunately, MacLean II will significantly, further reduce disclosures that
could have a significant impact in preventing homeland security breakdowns, like
his. The ruling goes far beyond “diminishing” WPA rights. It allows agencies to
cancel them whenever Congress requires secrecy regulations to for an agency
mission.
Second, combined with the Ninth Circuit ruling that SSI does not have to be
marked, the decision leaves employees facing inherent uncertainty whether they
are violating SSI regulations. Previously that uncertainty would have been
academic, since § 2302 (b)(8)(A) superseded conflicting agency restrictions.
MacLean II made the agency restrictions on unmarked information controlling,
however. In its aftermath, the only way an employee can know whether speech is
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