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such disclosures, or to the Office of Special Counsel. In other cases, however, a disclosure to a different party, such as the media, would still be protected. The employee might not know which category applies-and therefore to whom a protected disclosure may be made-at the time the disclosure seems important to make ... As MacLean demonstrated, making the disclosure to some entities versus others can carry a greater risk that the disclosure may not be protected. MacLean II does not eliminate any of this chilling uncertainty. B. The Board’s interpretation cannot coexist with the Act’s legislative history. If there were statutory ambiguity whether SSI rules constitute “law” under §2302(b)(8), it must be resolved through legislative history. Amegan v.U.S. Int’l Trade Comm’n, 902 F.2d 1532, 1538 (Fed. Cir. 1990) MacLean II did not address the extensive legislative history demonstrating that Congress specifically considered and dispositively resolved the issue in 1978: “prohibited by law” does not include agency rules or regulations. That conclusion is evident from tracing §2302(b)(8)(A)’s evolution. As originally introduced in the Senate, it would have restricted public disclosures of information whose release is prohibited by “law, rule, or regulation.” Due to concerns that this would permit agencies to override rights through internal regulations, the final language was changed to exclude restrictions created by rules and regulations. S. Rep. No. 95-969, 95th Cong., 2d Sess., 12 (1978), reprinted in 1978 U.S. Code and Admin. News 2723, 2743 ("Senate Report"); Vaughn, 56
Statutory Protection of Whistleblowers in the Executive Branch, 1982 U. Ill. L.R. 615, 629. The identical change in statutory language occurred in the House. See H.R. 11,280, 95th Cong., 2d Sess. (1978) There can be no doubt the change in language was intentional, rather than inadvertent. As the House Conference Report observed, "Prohibited by law refers to statutory law and court interpretations of those statutes... not ... to agency rules and regulations." HR Conf. Rep. No. 95-717, 95th Cong., 2d Sess. 130, reprinted in 1978 USCCAN 2860, 2864 (emphasis supplied) The Conference Report’s guidance is authoritative. Brotherhood of Maintenance of Way Emp. v. US., 366 U.S. 169, 175-6(1961) In reality, there was no conflict between House and Senate to resolve. As the Senate Report emphasized, Those disclosures which are specifically exempted from disclosure by a statute which requires that matters be withheld from the public in such a manner as to leave no discretion on the issue, or by a statute which established particular criteria for withholding or refers to particular types of matters to be withheld, are not subject to the [CSRA whistleblower] protections. Senate Report, at 28 (emphasis supplied) C. The Board erroneously restored legislative language that Congress deleted. A forum cannot restore statutory language after Congress removes it. A basic canon of statutory construction is that when Congress removes proposed language from legislation it enacts, that means it also has rejected the associated 57
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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
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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 and 66: Senatorial Campaign Comm., 454 U.S.
Page 67: protected is by voluntarily submitt
Page 71 and 72: Board did not have the authority to
Page 73 and 74: suggested that SSI information of g
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