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UNITED STATES OF AMERICAMERIT SYSTEMS PROTECTION BOARD
ROBERT J. MACLEAN,Appellant
v.
DEPARTMENT OF HOMELANDSECURITY,
Agency
))))))))))
Docket No. SF-0752-06-061l-I-2
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEFIN SUPPORT OF APPELLANT ROBERT J. MACLEAN
Representatives Dennis Kucinich and Carolyn Maloney hereby move this Board for leave to file
their Brief In Support ofAppellant as Amici Curiae in the above-captioned matter. As amici curiae, we
respectfully request leave to submit the attached brief addressing Mr. Maclean's termination for
disclosure of Sensitive Security Information. This Motion and the accompanying brief are timely, In
support of this Motion, please see the attached Memorandum of Points and Authorities.
/ oward Schulman, Senior Counselffiee ofV.S. Congressman Dennis Kucinich
2445 Rayburn House Office BuildingWashington, DC 20510Tel. (202) [email protected] for Amici
UNITED STATES OF AMERICAMERIT SYSTEMS PROTECTION BOARD
v.
ROBERT J. MACLEAN,Appellant
DEPARTMENT OF HOMELANDSECURITY;
Agency
)))))))))
-------------)
Docket No. SF-0752-06-0611-I-2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFMOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
IN SUPPORT OF APPELLANT ROBERT J. MACLEAN
Amici, Congressman Kucinich and Congresswoman Maloney, were among the original sponsors
of H.R.985, the Whistleblower Protection Enhancement Act of2007. The text ofH.R.985 was re-
introduced in the last Congress as H.R.1507, the Whistleblower Protection Enhancement Act of2009.
Amici serve as senior members of the House Oversight and Government Reform Committee, which has
jurisdiction over the legislation, and have engaged actively in case work with individual whistleblowers,
both to challenge government misconduct and to defend those public servants against retaliation.
Amicus Maloney's office worked with Mr. MacLean when he made the original disclosure of cancelled
Air Marshall coverage, for which this brief seeks Board review under the Whistleblower Protection Act
("WPA"). Amicus Kucinich previously served as ranking member of the Committee Subcommittee on
National Security.
Amici are concerned that the protections for federal employees that Congress included in the
2
WPA have been undennined by hostile judicial and administrative interpretations, and believe that this
appeal offers the Board an opportunity to restore whistleblower rights to the level intended by Congress.
In the attached brief, amici argue that the Board's decision in MacLean v. Department ofHomeland
Security, 112 MSPR 4 (2009), was inconsistent with established principles of statutory interpretation,
and irreconcilable with the statutory language and legislative history of the WPA
Because of the vital importance of this issue and the potentially far-reaching effects of this case,
the proposed amici request pennission, pursuant to 5 C.ER. § l201.34(e), to file this brief so that the
Board may benefit from their unique expertise and from the information contained therein. They
represent constituencies which have a special interest in the subject matter and outcome of this case, and
believe that the attached brief provides a helpful analysis of the law at issue.
Resp}'ct
'M2~~¢fA.~1I.:\.-ward Schulior Coun et,
a Ice ofV.S. Congressman Dennis Kucinich2445 Rayburn House Office BuildingWashington, DC 20510Tel. (202) 225-5871Howard.Schulman®rnail.house.gov
Counsel for amici
3
CERTIFICATE OF SERVICE
I, Howard Schulman. HEREBY CERTIFY that a true and accurate copy of the foregoingMotion and Memorandum In Support, and of the accompanying brief, was served this 12th day ofApril,2011, via U.S. Mail, upon the following:
Robert J. MacLeanAppellant20 Waltham RoadLadera Raoch, CA 92694
Larry BergerGeneral Counsel,Federal Law Enforcement Officers Association,Mahon & Berger350 Old Country RoadGarden City, NYTel. (516) [email protected]
Eileen Dizon Calaguas, Esq.Attorney-Advisor,Department of Homeland SecurityTSA Office of Chief Counsel450 Golden Gate AvenueP.O. Box 36018San Francisco, CA 94102
Thomas Devine,Legal Director,Government Accountability Project1612 K Street, NW, Suite 1100Washington, DC 20006Tel. (202) [email protected]
Ben ChavetChief of Staff,Office of Congresswoman Carolyn Maloney2445 Rayburn House Office BuildingWashington, DC 20515Tel. (202) [email protected]
1
award Schy.1 anenior Counsel,
Office of U.S. Congressman Dennis Kucinich2445 Rayburn House Office BuildingWashiogton, DC 20510Tel. (202) [email protected]
Counsel for Amici
4
UNITED STATES OF AMERICAMERIT SYSTEMS PROTECTION BOARD
ROBERT J. MACLEAN,Appellant
v.
DEPARTMENT OF HOMELANDSECURITY,
Agency
DOCKET NUMBERSF-0752-06-0611-I-2
BRIEF OF DENNIS KUCINICH AND CAROLYN MALONEYAS AMICI CURIAE
Howard SchulmanSenior CounselCongressman Dennis KucinichU.S. House of Representatives2445 Rayburn House Office Bldg.Washington, D.C. 20515(202) 225-5871
Counsel of Record for the Amici
1
TABLE OF CONTENTSPage
TABLE OF AUTHORITIES 3
IDENTITY AND INTEREST OF THE AMICI CURIAE 5
BACKGROUND AND HISTORY OF PROCEEDINGS 6
ARGUMENT 9
I. ONLY SPECIFIC STATUTORY PROHIBITIONS, AND NOT AGENCYREGULATIONS, CAN LIMIT WPA PROTECTIONS FOR NON-CLASSIFIEDWHISTLEBLOWING DISCLOSURES 9
A. The Decision in MacLean 2009 is Inconsistent With EstablishedPrinciples of Statutory Interpretation 9
B. The Legislative History of the WPA Clearly Shows That "Prohibited byLaw" Was Intended to Mean "Prohibited by Statutory Law and CourtInterpretations of That Law." .11
C. The Chrysler Decision Does Not Support The Interpretation That ThePrior Board Asserted 13
D. The prior Board ignored the requirement for a "specific" statutoryprohibition 15
E. The prior Board's ruling is inconsistent with current nationalpolicy 16
II. LAWFUL DISCLOSURES THAT EXPOSE OR STOP GOVERNMENTABUSES OF AUTHORITY PROMOTE THE EFFICIENCY OF THE SERVICE
...................................................... , 18
A. The Code of Ethics for Government Service is the First Principle for theEfficiency of the Service : 19
B. The Administrative Judge's priorities for efficiency of the service areincompatible with the merit system principles of the Whistleblower ProtectionAct. 20
CONCLUSION 22
2
TABLE OF AUTHORITIES
PageCASES
American Foreign Service Association v. Garfinkel, 732 F.Supp. 13 (DDC 1990) 16
Arizona Electric Power Co-op. v. United States, 816 F.2d 1366 (9th Cir. 1987) .10
Boise Cascade v. EPA, 942 F.2d 1427 (9th Cir. 1991) .15
Brotherhood ofMaintenance Way Emp. v. Us., 366 U.S. 169,81 S.Ct. 913 (1961) ..... 12
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) 11, 13-15
Crumpler v. Department ofDefense, 2009 MSPB 224 17
Keene Corp. v. United States, 508, U.S. 200 (1993) .10
Kent v. General Services Administration, 56 MSPR 536 (1993) 9, 16
MacLean v. Department ofHomeland Security, 545 F.3d 1145 (9th Cir. 2008) 8
MacLean v. Department ofHomeland Security, 112 MSPR 4 (2009) .. 8-9,13-19,20-22
MacLean v. Department ofHomeland Security, No. SF-0752-06-0611-I-2, InitialDecision (June 16, 2010) 8, 18
Martin v. Lauer, 686 F.2d 24 (D.C. Cir. 1982) .14
West Coast Truck Lines, Inc. v. Arcata Community Recycling Ctr., 846 F.2d 1239 (9th
Cir.1988), cert. denied, 488 U.S. 856 (1988) .1 0
STATUTES AND RULES
5 U.S.c. 2302(b)(8)(A) 10-13,15,17
49 U.S.C. 114(s)(1) 8, 15
PL 96-303, 94 Stat. 855 (July 3, 2980) 19
H.R. Can. Res. 175,72 Stat. B12 (1958) 19
3
5 CFR Part 2635 19
OTHER AUTHORITIES
CRS Report for Congress, "Statutory Interpretation: General Principles and RecentTrends," (August 31, 2008) 10
124 Congo Rec. S14302-03 (daily ed. Aug. 24,1978) 19
153 Congo Rec. S6034 (daily ed., May 14, 2007) .21
H.R. 11280 12
H.R. Conf. Rep. No. 95-717, 9th Cong., 2d Sess., reprinted in 1978 USCCAN 2860 ..... 12
Senate Committee Report, S. Rep. No. 969, 9th Cong., 2d Sess., reprinted in 1978USCCAN 2725 21
S. 2640 11
S. Rep. No. 95-969, 95th Cong., 2d Sess. (1979), reprinted in 1978 U.S. Code & Admin.News 2723 ("Senate Report") 11
S. Rep. No. 110-32 (1lOth Cong., 2d. Sess.) 22Vaughn, Statutory Protection ofWhistleblowers in the Executive Branch, 1982 U. Ill.
L.R. 615 11
4
IDENTITY AND INTEREST OF THE AMICI CURIAE
Amici curiae ("Amici") are Members of Congress, which has responsibility for
oversight of the civil service system. Amici are concerned that the protections for federal
employees that Congress has included in the Whistleblower Protection Act ("WPA")
have been undermined and negated by hostile judicial and administrative interpretations
of the WPA that contradict its specific statutory language. Amici were among the
original sponsors ofH.R.985, the Whistleblower Protection Enhancement Act of2007,
which was designed to reverse those hostile interpretations and to restore statutory
whistleblower rights to the level intended by previous Congresses that had enacted and
repeatedly reaffirmed them. The text ofH.R.985 was re-introduced in the last Congress
as H.R.l507, the Whistleblower Protection Enhancement Act of2009. Amici intend to
continue their leadership on this issue in the current Congress.
The present appeal offers an opportunity for the Merit Systems Protection Board
("MSPB" or "Board") to restore the basic premises for merit systems principles, and to
restore the statutory infrastructure necessary for the WPA to be viable. In particular,
amici believe that, by exercising its inherent authority to reverse the decision of the prior
Board in a June 2009 ruling, the present Board can restore or strengthen two significant
principles for the merit system generally, and the WPA specifically: l) WPA free speech
rights must supersede agency restrictions in personnel actions; and 2) the efficiency of
the service is not promoted by employee silence in response to government misconduct
that threatens a public service mission.
5
Each of these principles was long-established in previously-enacted provisions of
the WPA or the Civil Service Reform Act of 1978. Each of these principles has been, to
date, rejected or ignored in this proceeding.
The WPA was unanimously-passed in 1988 and 1989, and unanimously
strengthened in 1994. Congress is near completion of a twelve-year effort to restore
previously-enacted rights abolished through hostile judicial activism, and to improve due
process structures for enforcement of those rights. It is unrealistic and unacceptable that
Congress must keep updating its legislation and re-enacting rights, in order to offset the
results ofjudicial and administrative decisions that cannot co-exist with what Congress
intended to be unequivocal statutory language and objectives. Amici seek to participate
in this proceeding, to break this pattern and to preclude the necessity for new legislation.
BACKGROUND AND HISTORY OF PROCEEDINGS
In late July 2003, intelligence sources learned of a subsequently-confirmed plan
for another terrorist suicide airplane high-jacking plot analogous to the terrorist attacks of
September 11, 2001 ("9/11") but with a broader and more ambitious scope, including
European as well as American targets. Between July 26 and July 28, the Federal Air
Marshal Service ("FAMS") called in every Federal Air Marshal for an 'emergency, face
to-face briefing about special precautions and measures to thwart the imminent attack.
These emergency, mandatory briefings were unprecedented.
A day or two after, however, all Air Marshals received an unrestricted text
message instructing them to cancel hotel reservations for all Remain Overnight ("RON")
6
flights, beginning August 2, 2003. Instead of taking extra precautions, this instruction
would have eliminated Air Marshal coverage on the long-distance flights targeted for
hijacking, the same type of flights attacked by the 2001 "shoe bomber" and the 2009
"Christmas underwear bomber."
Mr. MacLean protested to his supervisor and the Office of Inspector General
("OIG"). When both declined to act, on July 28 he contacted the media. The ensuing
MSNBC repOli led to aggressive questioning at the next White House press conference,
and to another press conference in which members of Congress with oversight duties
expressed outrage and threatened hearings. In response, TSA reversed its text message
order, Air Marshal coverage was restored, and the hijacking plot was prevented.
In 2005, at the request ofFAMS chief Thomas Quinn, the Immigration and
Customs Enforcement ("ICE")/Office of Professional Responsibility ("OPR") opened an
investigation of Mr. MacLean. The investigation was opened, because Mr. MacLean was
suspected of appearing anonymously on a special 2004 NBC Nightly News 9/11
anniversary television segment in which he made numerous disclosures of alleged FAMS
program breakdowns that sustained threats to aviation security. During the course of that
investigation, Mr. MacLean fully disclosed his participation in the program, and
responded to investigators' questioning by also voluntarily disclosing that he was the
whistleblower who had revealed, among other things, the July 2003 order that would
have reduced Air Marshal coverage during the hijacking alert.
TSA did not impose discipline on Mr. MacLean for his 2004 NBC Nightly News
disclosure or any of the others, but the agency terminated him for the July 2003
7
disclosure. Although the text message had not contained any disclosure restrictions when
Mr.MacLean released its contents, the agency removed him for revealing Sensitive
Security Information ("SSI"), whose public release is barred under agency secrecy rules
authorized by the Aviation Transportation and Sec;urity Act (ATSA). 49 USC l14(s)(1)
After Mr. MacLean's removal, the agency retroactively categorized the message as 8SI,
although no copies could any longer be found, and despite the fact that FAMS had chosen
to send it unmarked to unsecured cellular phones, as opposed to the FAMS multimillion
dollar encrypted, password-protected smart-phone system
Despite Mr. MacLean's challenge to the ex post facto restriction, the Ninth Circuit
Court of Appeals held that the text message legally qualified as SSI. However, the Court
further held that, due to the lack of notice of any restriction in the text message, the
MSPB should determine whether the disclosure reflected a good faith mistake with
respect to liability. MacLean v. Department ofHomeland Security, 545 F.3d 1145, 1152
(Ninth Cir. 2008)("MacLean Ninth Circuit")
The MSPB has issued two subsequent rulings that set the stage for the present
Petition for Review. On June 22,2009 in MacLean v. Department ofHomeland Security,
112 MSPR 4 (2009)("MacLean 2009"), the prior Board held that the agency's SSI
restrictions disqualified Mr. MacLean's 2003 disclosure from coverage under the WPA.
And, on May 12, 2010 Administrative Judge Franklin Kang upheld Mr. MacLean's
termination as promoting the efficiency of the service. MacLean v. Department of
Homeland Security, No. SF-0752-06-0611-I-2, Initial Decision (June 16, 2010)("ID")
8
ARGUMENT
1. ONLY SPECIFIC STATUTORY PROHIBITIONS, AND NOT AGENCYREGULATIONS, CAN LIMIT WPA PROTECTIONS FOR NON-CLASSIFIEDWHISTLEBLOWING DISCLOSURES
Until MacLean 2009, it was clear that agency-created secrecy regulations could
not supersede WPA protections for public disclosures. This cornerstone for WPA rights
was so clear that it had only been considered once by the MSPB since enactment of the
original language in 1978. In Kent v. General Services Administration, 56 MSPR 536
(1993), the Board confirmed that "the statutory language, coupled with the legislative
history" of the WPA "evidences a clear legislative intent" that agency secrecy regulations
could not negate WPA protections for public disclosures.
For over 15 more years, that principle remained unchallenged. The prior Board's
decision last year in MacLean 2009, overturning Kent, is totally inconsistent with long-
established principles of statutory construction, with unequivocal statutory language used
by Congress, with the evidence of Congress' legislative intent, and with 30 years of
consistent interpretation of that language and that intent. This Board should reverse the
ruling in MacLean 2009 and reinstate the WPA protections that Congress clearly
specified and intended.
A. The Decision in MacLean 2009 is Inconsistent With Established Principles ofStatutory Interpretation.
The decision in MacLean 2009 violated at least two basic "canons" of statutory
construction. The first canon is that "where Congress includes particular language
9
in one section of a statute but omits it in another ... , it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion." Keene
Corp. v. United States, 508 U.S. 200,208 (1993) (quoting Russello v. United States, 464
U.S. 16,23 (1983»; CRS Report for Congress, "Statutory Interpretation: General
Principles and Recent Trends," at p. 14 (August 31, 2008). The second canon is that: if
Congress expresses itself with specificity in one context, such specificity cannot be
implied where it is excluded elsewhere. Ariz. Elec. Power Co-op. v. United States, 816
F.2d 1366,1375 (9th Cir. 1987); see also West Coast Truck Lines, Inc. v. Arcata
Community Recycling Ctr., 846 F.2d 1239, 1244 (9th Cir. 1988), cert. denied, 488 U.S.
856 (1988).
In 5 USC 2302(b)(8)(A), Congress established both what constitutes protected
speech, and what the restrictions on public disclosure of that information would be.
Subsection (b)(8)(A) protects disclosures of information that an employee "reasonably
believes evidences a violation of any law, rule, or regulation .. .."(Emphasis supplied).l
The same subsection also excludes protection for such disclosures ifthe information
disclosed is classified or "specifically prohibited by law."(Emphasis supplied).
Congress used "particular language" in the first phrase quoted above, and omitted
that language in the second phrase. Congress expressed itself with specificity in the first
phrase, but excluded such specificity in the second phrase. As we will see in the next
section of this Brief, the legislative history shows that the different language and the
exclusion of specificity were clearly intentional. But even ifthere were no legislative
There are five other subsections ofthe same statute that use the phrase "law, ruleor regulation."
10
2
history, the applicable canons of statutory construction, recited above, require that the
word "law" be interpreted differently from the words "law, rule or regulation" and that it
be interpreted to exclude the specificity of the words "rule or regulation," especially
where the two different phrases appear in the same subsection-in what is essentially the
same paragraph oftext.2
B. The Legislative History of the WPA Clearly Shows That "Prohibited by Law"Was Intended to Mean "Prohibited by Statutory Law and Court Interpretations of ThatLaw."
The prior Board rested its decision entirely upon a novel interpretation ofthe
United States Supreme Court decision in Chrysler Corp. v. Brown, 441 U.S. 281 (1979).
In Chrysler, there was no legislative history for the Court to review. Chrysler, 441 U.S. at
298. In the present situation, there is abundant legislative history, and it is consistent and
clear-it demonstrates that both the House and the Senate intended to remove "rule or
regulation" from 5 U.S.C. Section 2302(b)(8)(A) and to deny WPA protection to an
employee only if the employee's disclosure was prohibited "by law."
When the bill, S. 2640, was originally introduced in the Senate, Section
2302(b)(8)(A) excluded protection for public disclosures that were in violation of "law,
rule or regulation." After discussion and debate, restrictions on protection due to
violations of "rule or regulation" were removed by the Senate, so that restrictions
imposed by an agency itself could not circumvent the employee's rights. S. Rep. No. 95-
969, 95th Cong., 2d Sess., 12 (1978), reprinted in 1978 U.S. Code & Admin. News 2723,
The prior Board ignored these canons of statutory construction and simplydismissed this argument as "begging the question...." MacLean 2009, 112 MSPR, slipop. at 15
11
2743 ("Senate Report"); Vaughn, Statutory Protection ofWhistleblowers in the Executive
Branch, 1982 U. Ill. L.R. 615, 629. The version passed by the Senate excluded
whistleblower protection only for disclosures that were prohibited by "statute."
When the bill was originally introduced in the House, H.R. 11280, Section
2302(b)(8)(A) also excluded protection for public disclosures that were in violation of
"law, rule or regulation." After discussion and debate, "rule or regulation" was deleted
by the House, just as it had been deleted by the Senate, and the version passed by the
House excluded whistleblower protection only for disclosures that were prohibited by
"law." The House Conference Report explained exactly what the House intended by its
deletion of "rule or regulation" and what the House meant by "prohibited by law:"
"Prohibited by law refers to statutory law and court interpretations of thosestatutes ...not.. .to agency rules and regulations." HR Conf. Rep. No. 95-717,95th Cong., 2d Sess. 130, reprinted in 1978 USCCAN 2860, 2864 (Emphasissupplied).
The purpose of a Conference Report is to reconcile distinctions between
chambers, and to standardize equivalent telIDS. Another fundamental rule of statutory
construction is that clear Conference Report guidance is authoritative. Brotherhood of
Maintenance ofWay Emp. v. US., 366 U.S. 169, 175-6,81 S.Ct. 913 (1961)
The House Conference Report is determinative evidence that the House
considered "prohibited by law" to have a different meaning from "prohibited by law, rule
or regulation," and that the House expressly intended to exclude "rule or regulation" from
12
3
that meaning. "Law" was intended to mean "statutory law and court interpretations of
those statutes ....,,3
So, when the House and Senate resolved the language difference in the
conference committee, they were choosing between the Senate's "prohibited by statute,"
and the House's "prohibited by [statutory law and court interpretations ofthose
statutes]." They were not choosing between "prohibited by statute" and "prohibited by
law, rule or regulation" as the prior Board contended in MacLean 2009. Both the House
and the Senate had specifically rejected that exact language in the versions of the bill that
they passed. They were choosing between "prohibited by statute" and a slightly broader
provision that also included "court interpretations of those statutes." The "interpretation"
of 'law" argued by the prior Board in MacLean 2009 does not have any basis in the
legislative history of the statute.
C. The Chrysler Decision Does Not Support The Interpretation That The PriorBoard Asselied.
In MacLean 2009, the prior Board asserted that Chrysler created a "default
construction" that controlled any interpretation of what Congress intended by the phrase
"prohibited by law." However, that "default construction" did not even exist in 1978
when Section 2302(b)(8)(A) was debated, modified in both houses, passed in both houses
and resolved in the conference committee. That "default construction" did not exist until
the following year when the Supreme Court issued the Chrysler decision. The most that
The definition of "law" recited by the Conference Report was in 1978,and still is, a standard definition in the legal community. All U.S. lawyers are taught inlaw school that "law" is composed oftwo elements-statutory law and "common law.""Common law" consists of "court interpretations of. .. statutes" and other legal principlesestablished by court decisions.
13
existed in 1978 were what the Chrysler court referred to as "antecedents" in a totally
different statute. MacLean 2009 at Par. 28. In other words, the prior Board in MacLean
2009 was "presuming" that Congress in 1978 conducted the same legal analysis of those
"antecedents" that the Supreme Court conducted one year later in 1979, and that
Congress reached the same interpretation of "law" that was reached by the Supreme
Court one year later. There is no legal or factual basis for that "presumption."
Furthermore, the reasoning of the Chrysler decision does not support the
conclusions that the prior Board reached. The Chrysler court was interpreting a
"disclosure" statute ("We have... continually recognized that the basic objective ofthe
Act [the Freedom ofInformation Act, or "FOIA"] is disclosure." 441 U.S. at 290).4
Since they had no legislative history to rely upon, the Justices had to look to the purpose
ofthe FOIA to interpret its language. The Justices referred to the "settled
understanding... continually articulated and relied upon during the legislative efforts in
Congress in the last three decades to increase public access to Government information."
Id. at 299. It is "the existence of this understanding" that "shed[s] some light on the
intent of the enacting Congress." Id. at 299-300. The Court, therefore, interpreted FOIA
in a manner that would encourage disclosure-that is, in a manner that would "increase
public access to information."
The Court in Chrysler was also interpreting a totally different phrase-
"authorized by law," rather than "prohibited by law." The two phrases have exactly
opposite meanings. The prior Board in MacLean 2009 adopted the same meaning of
4 See, also, Martin v. Lauer, 686 F.2d 24, at 33 (D.C. Cir. 1982)(distinguishingFOIA as a "disclosure" statute rather than a "withholding" statute and citing Chrysler).
14
"law" for both phrases, without ever considering whether that would be appropriate in the
two opposite contexts involved.
In Chrysler, the Court interpreted "authorized by law" broadly to include
"authorized by rule or regulation," but it did so in the context of a statute that was
intended to "increase public access to information." MacLean 2009 also involved a
statute that was intended to "increase public access to information."s But, the prior Board
interpreted the word "law" in a way that would decrease "public access to information."
In other words, the prior Board interpreted the WPA in way that was contrary to its
intent. That is a result that is totally inconsistent with the principles recited in Chrysler.
D. The prior Board ignored the requirement for a "specific" statutory prohibition
Section 2302(b)(8) excludes WPA protection only for public disclosures that are
"specifically prohibited by 1aw."(Emphasis supplied). Even ifthere were no legislative
history concerning the meaning of this requirement of "specificity," another rule of
statutory construction would mandate that a statute not be interpreted in a manner that
renders its terms superfluous. Boise Cascade v. EPA, 942 F.2d 1427, 1432 (9th Cir.
1991). This rule of construction would require a showing of a "specific" prohibition by
law in order for a disclosure to lose its protection under the WPA.
In the present situation, there was legislative history on this issue. The Senate
Report explained that a "specific" statutory prohibition either "must leave no discretion
The public disclosure rights codified at 5 USC 2302(b)(8) in the Civil ServiceReform Act of 1978 (later the WPA) are part of "the legislative efforts in Congress in thelast three decades to increase public access to Government information." Chrysler, at299.
15
6
on the issue, or [be] a statute which establishes particular criteria." Senate Report, supra,
at 2743. The term "specifically" was not intended to be superfluous.
The ATSA provision does not meet the congressional standard for a statutory
provision that establishes specific criteria. The ATSA instruction merely restricts release
of information "detrimental to aviation security." 49 USC 114(s)(1). Depending on the
circumstances, that sweeping mandate could apply to almost any information relevant to
aviation. It is consistent with the general housekeeping authority necessary for all
agencies to protect confidential information relevant to their missions. There are no
"particular criteria" controlling agency discretion. 6
However, in MacLean 2009, the prior Board totally ignored the statutory
requirement for a "specific" statutory prohibition (which Kent had analyzed in depth).
The prior Board based its decision upon a prohibition that could not have been more
"general." Under the applicable rule of statutory construction, and given the relevant
legislative history, the prior Board should have considered that statutory requirement of
specificity and should have reached the opposite conclusion-the same conclusion that
was reached in Kent.
E. The prior Board's ruling is inconsistent with current national policy.
On November 4, 2010, the President issued, "Executive Order -- Controlled
Unclassified Information" to establish consistent procedures and standards for the over
Indeed, standing alone the congressional provision could not even pass musterfor constitutional prohibitions against vagueness and overbreadth. See American ForeignService Association v. Garfinkel, 732 F. Supp 13 (DDC 1990)(finding a similar hybridsecrecy restriction, "classifiable" to be unconstitutional on those grounds).
16
100 hybrid secrecy categories of unclassified information, including SSI. The Executive
Order's state of purpose explains-
This order establishes an open and uniform program for managing infonnationthat requires safeguarding or dissemination controls pursuant to and consistentwith law, regulations, and Government-wide policies, excluding information thatis classified under Executive Order 13526 of December 29,2009, or the AtomicEnergy Act, as amended.
At present, executive departments and agencies (agencies) employ ad hoc,agency-specific policies, procedures, and markings to safeguard and control thisinformation, such as information that involves privacy, security, proprietarybusiness interests, and law enforcement investigations. This inefficient, confusingpatchwork has resulted in inconsistent marking and safeguarding of documents,led to unclear or unnecessarily restrictive dissemination policies, and createdimpediments to authorized information sharing. The fact that these agencyspecific policies are often hidden from public view has only aggravated theseIssues.
To address these problems, this order establishes a program for managing thisinformation, hereinafter described as Controlled Unclassified Information, thatemphasizes the openness and uniformity of Government-wide practice.
Section 2(b) provides, "The mere fact that infonnation is designated as CUI shall
not have a bearing on determinations pursuant to any law requiring the disclosure of
information or permitting disclosure as a matter of discretion, including disclosures to
the legislative and judicial branches." (emphasis supplied)
The provisions of the Whistleblower Protection Act, as passed by Congress, were
intended to be interpreted in a manner that is consistent with this Executive Order.
Section 2302(b)(8) permits public disclosure when an employee reasonably believes it is
evidence of significant misconduct. Vacating the prior Board's ruling will restore to
WPA the level of protection that Congress intended and will place WPA in harmony with
the current Executive Order on Controlled Unclassified Information.
11
Amici urge the Board to exercise its authority to vacate the arbitrary cancellation
of free speech rights that MacLean 2009 creates. As with Crumpler v. Department of
Defense, 2009 MSPB 224, extraordinary leadership is necessary to restore basic rules that
are a prerequisite for enforceable merit system rights, in this case whistleblower
protection. Virtually every agency has statutory authority to issue secrecy regulations.
Until MacLean 2009 is vacated, that also means that every agency has authority to fire
whistleblowers under its own internal rules, without regard to the Whistleblower
Protection Act.
II. LAWFUL DISCLOSURES THAT EXPOSE OR STOP GOVERNMENTABUSES OF AUTHORITY PROMOTE THE EFFICIENCY OF THE SERVICE
With Mr. MacLean's WPA protection removed by MacLean 2009, the
Administrative Judge ("AJ") sustained Mr. MacLean's termination on grounds that it
upheld the efficiency of the service. The AJ made this judgment despite concluding:
1) that he had "no reason to doubt the Appellant's assertion that he took these actions to
benefit the nation and increase the efficiency of the service.. ."(ID, at 28), 2) that he had
no reason to doubt that Appellant's disclosure "improved FAM presence.. .."(ID, at 26),
and 3) that "the Agency appears to agree with Appellant's assertion that his disclosure
did not harm the Las Vegas RON flights at issue...." (Id.)
Nonetheless, the AJ ruled that the efficiency of the service was undermined
because, "[w]hile the Appellant's actions may have indeed strengthened the FAM
presence... , the Agency was compelled to shift resources, explaining 'in light ofthat
disclosure that Mr. MacLean made, now they would now have to do excessive work to
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either correct that or make some decisions.'" (ID at 27). The policy implications of the
priorities contained in that ruling are clear. The ruling stands for the principle that the
efficiency of the service is undennined when an individual's actions force an agency to
correct its mistakes, even when those mistakes were undelmining the government's
public safety mission.
Those priorities place an agency's interests over the public interest. They are
incompatible with the Board's own mission. It is unacceptable to place merit system
principles in an adversary relationship with the efficiency of the service. The Board's role
is to promote the efficiency of the service by enforcing merit system principles.
A. The Code of Ethics for Government Service is the First Principle for theEfficiency of the Service
Merit system principles are the framework to guide implementation of the Code
of Ethics for Government Service, 5 CFR Pmi 2635. This Code of Ethics is required by
law to be displayed in every government office. PL 96-303,94 Stat. 855 (July 3, 1980);
H.R. Con. Res. 175, 72 Stat. B12 (1958). As seventeen senators explained in a Dear
Colleague letter before congressional passage of the Civil Service Refonn Act of 1978,
the whistleblower provisions were included "to vindicate the Code of Ethics for
Government Service.... Under our amendment, an employee can fulfill those obligations
without putting his or her job on the line." (Reprinted in 124 Congo Rec. S14302-03
[daily ed. Aug 24, 1978).
In relevant part, the Code requires every federal employee to -
"1. Put loyalty to the highest moral principles and to country above loyalty topersons, party, or Government Department. ..
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"x. Uphold these principles, ever conscious that public office is a public trust."
Unfortunately, in the present proceeding the Board has not recognized the
relevance ofthe Code of Ethics. The loyalty priorities of the Code of Ethics stand in
opposition to the decision on appealnthat the extra work and embarrassment of correcting
a mistake, which risked a national tragedy, are more important than preventing that
tragedy.
Sadly, the Code of Ethics has not had a significant impact beyond its appearance
on agency walls. The lesson from the decisions to date in this proceeding will make it
worsen an employee will only be able to fulfill obligations under the Code of Ethics by
putting his or her job on the line. This appeal is an opportunity for the Board to re-
establish the Code's relevance as the decisive factor in determining the efficiency ofthe
service when balancing conflicting interests in merit system appeals.
B. The Administrative Judge's priorities for efficiency ofthe service areincompatible with the merit system principles of the Whistleblower Protection Act.
When Mr. MacLean made public disclosures protesting plans to cancel Air
Marshal coverage, the law for 25 years had been that Whistleblower Protection Act rights
superseded conflicting agency restrictions. He was entitled to be guided by the principles
behind that core merit system law. Despite MacLean 2009 's unjustifiable revision of the
boundaries for protected speech, the corresponding merit system principles still apply to
evaluate whether terminating him for those disclosures was necessary for the efficiency
of the service.
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By that standard, a review of the WPA's objectives again confinns that the
priorities between government and public interests in the Initial Decision are backwards.
Congressional intent has been clear from the start. As the Senate Committee Report, S.
Rep. No. 969, 95th Cong., 2d Sess. at 8, reprinted in 1978 USCCAN 2725, 2733,
emphasized,
Protecting employees who disclose government illegality,waste, and corruption is a major step toward a moreeffective civil service. In the vast federal bureaucracy, it is not difficultto conceal wrongdoing provided that no one summons the courage todisclose the truth.
Senator Charles Grassley (R.-IA.), an original sponsor of the Whistleblower
Protection Act, applied that purpose directly to congressional oversight:
As a Senator, I have conducted extensive oversight into virtually all aspects oftheFederal bureaucracy. Despite the differences in cases from agency to agency andfrom department to department, one constant remains: the need for infonnationand the need for insight from whistleblowers. This infonnation is vital toeffective congressional oversight, the constitutional responsibility of Congress, inaddition to legislating.
Documents alone are insufficient when it comes to understanding a dysfunctionalbureaucracy. Only whistleblowers can explain why something is wrong andprovide the best evidence to prove it. Moreover, only whistleblowers can help ustruly understand problems with the culture of Government agencies, becausewithout changing the culture, business as usual is the rule.
153 Congo Rec. S6034 (daily ed., May 14, 2007).
To defend this policy against hostile activism by administrative and judicial
institutions that should, instead, be responsible for enforcing the Whistleblower
Protection Act, Congress has worked since 1999 to restore its original mandate. The
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2007 Senate Committee Report on S. 274 applied the effort to national security
whistleblowers such as Mr. MacLean.
The Federal Employee Protection of Disclosures Act is designed to strengthen therights and protections of federal whistleblowers and to help root out waste, fraud,and abuse. Although the events of September 11, 2001, have brought renewedattention to those who disclose information regarding security lapses at ournation's airports, borders, law enforcement agencies, and nuclear facilities, theright of federal employees to be free from workplace retaliation has beendiminished as a result of a series of decisions of the Federal Circuit Court ofAppeals that have narrowly defined who qualifies as a whistleblower under thevVPA and what statements are considered protected disclosures.
S. Rep. No. 110-32 (11 oth Cong., 2d. Sess.) at 2.
The rulings of the prior Board in this proceeding go far beyond "diminishing"
WPA rights. They would make them discretionary for any agency whenever Congress
requires general secrecy regulations to achieve its mission. There is no basis in
legislative intent or public policy for a doctrine that an agency's mission can lawfully
include negating the Whistleblower Protection Act. Nor is there any common ground
between that approach and the efficiency of the service, as envisioned by Congress.
Congress carefully drafted the WPA, with stated modifications and limitations to protect
legitimate exercises of government secrecy. It is Congress' role to draw those boundaries
for responsible disclosure, both for assessing the efficiency of the service and the scope
of WPA coverage.
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CONCLUSION
The decision in MacLean 2009 is deeply flawed. Iflcft undisturbed, it will
remove important cornerstones of the merit system: I) the WPA's supremacy over
agency secrecy regulations, and 2) the Code of Ethics and corresponding merit system
principles as relevant criteria for the efficiency of the service. Amici urge the Board to
correct these destructive doctrines without further delay, rather than make the merit
system wait years for corrective legislative action.
Respectfully su itted,
Ho ard Schu1rnSenior CounselCongressman Dennis KucinichU.S. House of Representatives2445 Rayburn House Office Bldg.Washington, D.C. 20515(202) [email protected]
Counsel of Record for the Amici
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