United States Court of Appeals for the Federal Circuit

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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 Previously that uncertainty would have been academic, since § 2302 (b)(8)(A) superseded conflicting agency restrictions.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 54
protected is by voluntarily submitting to prior restraint to obtain an agency determination whether the information is SSI. 13 Worse than merely chilling speech Congress sought to encourage, prior restraint creates an inherent “freezing” effect. Nebraska Press Ass’n v. Stuart, 427 US 539, 559 (1976) Further, in MacLean’s case it would not have been timely. The security breakdown would have been a fait accompli by the time he obtained a ruling about the text message order’s status, leaving terrorists an opportunity to attack undefended flights. The Board’s decision neither commented on the Act’s purposes to advance the Code of Ethics through whistleblowing disclosures, nor considered whether its ruling supports or undermines that goal through a chilling effect. Ironically, however, its own report, Merit Sys. Protection Bd., Whistleblower Protections for Federal Employees: Report to the President and the Congress (2010), at 20-21, indicates the latter when analyzing the effect of MacLean I: The MacLean decision means that, in some cases, the disclosure is protected only if it is made to the agency's Inspector General, to another employee designated by the heads of the agency to receive 13 That is why the appropriations rider shielding the WPA from agency nondisclosure rules specifies that the Intelligence Identities Protection Act controls definition for classified information, the other statutory restriction on public disclosures. The definition in §421of that Act requires that to be classified, information must have a designation of that status. The policy is consistent with congressional intent, as an original provision of the legislation to strengthen WPA rights. See the Whistleblower Protection Enhancement Act, S. 743, at §§104(a), (b) Ironically, MacLean II gives agencies more discretion to impose a prior restraint-termination dilemma on whistleblowers for disclosures of unmarked SSI restricted by an agency, not even purportedly as sensitive as unmarked classified information restricted by Executive Order, for which there is no such discretion. 55
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2011-3231 United States Court of Ap
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TABLE OF CONTENTS ii Page CERTIFICA
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CONCLUSION ........................
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Coleman v. Dep't of the Treasury, 8
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Parsons v. Dep’t of Air Force, 70
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2004 Congressional Research Service
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JURISDICTIONAL STATEMENT The Merit
Page 15 and 16: 8. Did the Board err by failing to
Page 17 and 18: ief with the Board in support of Ma
Page 19 and 20: He immediately called other agents
Page 21 and 22: 12, 202-03. That was consistent wit
Page 23 and 24: MacLean’s concerns were well-take
Page 25 and 26: “disgruntled,” ‘malicious,”
Page 27 and 28: investigation, . . . [and] reportin
Page 29 and 30: The ICE/OPR affidavit is the only i
Page 31 and 32: was carried out in less than a week
Page 33 and 34: could not remember if he had any im
Page 35 and 36: contradicted himself repeatedly, an
Page 37 and 38: Spithaler v. Office of Pers. Mgmt.,
Page 39 and 40: This regulation did not take effect
Page 41 and 42: of agency action must limit itself
Page 43 and 44: The Ninth circuit’s MacLean decis
Page 45 and 46: Because MacLean was free to steer b
Page 47 and 48: The AJ supported this judgment with
Page 49 and 50: Isolated inconsistencies cannot sup
Page 51 and 52: total abandonment for all long dist
Page 53 and 54: II. TERMINATION DOES NOT SERVE THE
Page 55 and 56: to pick the weak link between indiv
Page 57 and 58: effective civil service.” WPA §2
Page 59 and 60: elevant for actions that could caus
Page 61 and 62: of Health and Human Services, 7 M.S
Page 63 and 64: Nor was Terreri presented as eviden
Page 65: Senatorial Campaign Comm., 454 U.S.
Page 69 and 70: Statutory Protection of Whistleblow
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United States Court of Appeals for
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United States Court of Appeals for the Federal Circuit

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