A look at a whistleblower law
on May 19, 2014 at 2:01 pm
The Supreme Court on Monday agreed to settle the scope of a federal government employee’s right to go public with a claim of misconduct by that worker’s agency, setting up a clash of public safety vs. national security. An air marshal who complained that the safety of airline passengers was being endangered by an agency policy got fired for exposing security secrets.
The new case, to be heard in the Term starting in October, is Department of Homeland Security v. MacLean. It was the only new case granted on Monday. The legal issue is where a court should look to determine whether the information that a whistleblower made public was barred from disclosure outside the agency.
The case involves Robert J. MacLean, who lost his job as an air marshal with the Transportation Security Administration for telling a cable news reporter that the TSA was cutting down on air marshals aboard airline flights out of Las Vegas. He protested to agency officials after getting word of the cutback but, dissatisfied with their response, decided to go public.
The leak caused an outcry in Congress, leading TSA to abandon the plan. At that time, TSA did not know the identity of the leaker, but it found out that it was MacLean after he appeared on a television show in a disguise that failed to conceal his identity. He was fired for violating a TSA regulation barring public disclosure of any details of how the agency would deploy its security staff, including air marshals.
MacLean took his case to court, arguing that the Whistleblower Act of 1989 barred the government from disciplining any federal employee for exposing information that the individual worker believed would be “a specific danger to public health or safety.” While that protection does not apply when the individual has made public information that is specifically protected by law from exposure, MacLean argued that he had violated no such law because only a TSA regulation — not a specific statute — applied to the information he released.
That argument prevailed in the U.S. Court of Appeals for the Federal Circuit — a specialized court that reviews government employee cases. That is the ruling that the Department of Homeland Security asked the Supreme Court to overturn, arguing that it “clears a path for any employee to do what [MacLean] did,” putting lives in danger by exposing national security protection information.
In a separate action on Monday, the Court asked the U.S. Solicitor General to provide the federal government’s views on how to determine when a foreign company has done sufficient business inside the U.S. to make it vulnerable to a lawsuit in federal courts for alleged wrongdoing. The case is OBB Personenverkehr v. Sachs, involving the government-owned railroad in Austria.
An American woman, Carol P. Sachs, bought a Eurail pass for a journey that would take place entirely outside the U.S., but she purchased the ticket from a travel agent in Massachusetts via the agent’s website. She took the trip, but when she tried to board the train in Innsbruck, Austria, she fell between the tracks. Her legs were crushed by the moving train, and both legs were amputated above the knee. She sued the railroad for damages in a federal court in California.
The rail company tried to get the case dismissed, arguing that under the Foreign Sovereign Immunities Act, the company could not be sued in a U.S. court for an incident that occurred entirely overseas because it was an arm of the Austrian government. The rail company’s argument persuaded a federal trial judge and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, but not the en banc Ninth Circuit. The divided en banc court ruled that the purchase of the ticket inside the U.S. gave the transaction a sufficient connection to this country to allow the lawsuit to go ahead.
There is no timetable for the Solicitor General to offer the government’s views on whether the Court should grant review in the case.
Among cases that the Court declined to review today were these:
** A constitutional challenge to the Federal Election Commission’s approach to deciding which politically active groups must register with the FEC as a PAC (political action committee), which leads to duties to disclose the group’s fund-raising activities. The denied case was Free Speech v. FEC.
** A plea for the Court to sort out the relationship between the U.S. Court of Appeals for the Federal Circuit and a federal agency, the Patent and Trademark Office, when they take different views on whether an existing patent on an invention is valid. The case of Baxter International v. Fresenius USA grew out of a dispute over competing medical devices for monitoring treatment of patients for kidney malfunction. After the Federal Circuit had upheld six claims on a Baxter patent, the PTO reopened a prior case and cancelled those claims, thus invalidating the patent. The Federal Circuit then deferred to the PTO’s ruling.