Patrolling the Unfriendly Skies: Protecting Whistleblowers Through Expanded Jurisdiction

Jon Knight*

Introduction
It is late July 2003.' The main character of this tale is secretive. His job is to quietly fly around the country, patrolling the friendly skies, watching for those who want to become an airborne threat to national security. He is a federal air marshal. His name is Robert MacLean. Usually, MacLean received instructions stating where, when, and on what airline he would fly through text messages on his government cell phone.2 However, one day, MacLean received a message from his superiors, informing him that all missions requiring an overnight stay would be canceled until August 9, 2003.3 This message meant that for over ten days, no air marshals would be flying on long cross-country flights. MacLean was concerned that this gap in coverage would be detrimental to public safety.' He raised this concern with his supervisor, but the supervisor declined to investigate the matter.' MacLean then tried to alert the Office of Inspector General, again with no success.6 As a last resort, MacLean disclosed the text message to members of the press on July 29, 2003.7 He blew the whistle on the Department of Homeland Security ("DHS"), setting off a political firestorm.

* J.D., expected May 2011, The George Washington University Law School; B.A., 2007, Patrick Henry College. I owe many thanks to Tara Ward and Jamie Sack for their input and guidance during the writing process, as well as to the entire FCBJ editorial staff for their careful editing. Any errors are my own. Finally, I want to thank God for blessing me with a wonderful wife, and for her unwavering support and love during this process. MacLean v. Dep't of Homeland Sec., 112 M.S.PR. 4, 5 (2009). 2 See id.

Id. Id.
MacLean v. Dep't of Homeland Sec., 543 F.3d 1145, 1148-49 (9th Cir. 2008) (per curiam). 6 Id. at 1149.
7

Id.

282

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20,

No. 2

On Wednesday, July 30, 2003, people across the nation read a disturbing report on the front page of the Washington Post.' Intelligence memos showed the greatest threat to airline safety since the 9/11 attacks on the World Trade Center and the Pentagon.9 The Post highlighted the disconnect between this heightened threat level and the confidential information it had received indicating that the Federal Air Marshal Service was canceling its patrols on the most vulnerable flight missions."o A second article included specifics, stating: "An e-mail obtained by The Washington Post from an air marshal official directed all local marshals to cancel flight plans on trips that required an overnight stays [sic] at hotels because of 'monetary considerations' just a day before the government informed airlines about the hijacking threat."" This story prompted swift action from Congress. Worried that the DHS was trying to protect the country "on the cheap," senators like Barbara Boxer (D-CA) and Chuck Schumer (D-NY) demanded an explanation from officials at the DHS.12 Initially, the DHS responded that priorities required cuts 3 in funding.1 However, by one thirty that afternoon, the DHS had changed its mind, saying it was a mistake to cut the funding for the Air Marshal Program." While MacLean's name was not known to Congress at this time, Senator Boxer expressed public thanks for the air marshal "who came forward and told the truth about what was going on .. . and [brought] this issue into the spotlight." If the story stopped here, MacLean's tale would be one of the whistleblower process at its purest and best. An agency made a bad decision, potentially threatening the safety ofAmericans. A federal employee brought that decision to the attention of the media and Congress. Congress acted, and the agency changed its mind. However, knowing the rest of the story dampens one's enthusiasm and trust in the whistleblower process. The Department of Homeland Security discovered that MacLean was the source of the leak. In September 2005, the Transportation Security Administration ("TSA"), MacLean's direct employer, proposed to remove MacLean on the basis of three charges: (1) Unauthorized

Sarah Kehaulani Goo & Susan Schmidt, Memo Warns ofNew Plots to ift/ackjets, WASH. PosT, July 30, 2003, at Al. 9 Id.
8

10Id.

" Sara Kehaulani Goo, Agency Tackles Visa-Program Threat:HomelandSecurityAlso Pledges to Reverse Plan to Cut Air Marshals'Funds,WASH. PosT, July 31, 2003, at A4. " U.S. Senator Barbara Boxer (D-CA) Holds News Conference on Air Marshals, in FDCHEMEDIA POL. TRANSCRIPTS, July 30, 2003 (LexisNexis). 13 Id. 14 Id.
"5

Id.

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

283

Media Appearance; (2) Unauthorized Release of Information to the Media; and (3) Unauthorized Disclosure of Sensitive Security Information in violation of 49 C.F.R. 1520.5(b)(8)(ii)."6 MacLean was removed from public service on April 11, 2006. " His act of whistleblowing had cost him his job. A whistleblower such as MacLean would usually have recourse for such retaliation through the Office of Special Council, the Merit Systems Protection Board ("MSPB"), and finally the Federal Circuit." In this case, however, because MacLean worked in the national security sector and was involved with Sensitive Security Information, he was left without recourse as the victim of what otherwise would be considered a "prohibited personnel practice."" This is not a new phenomenon. Employees in the national security sector often do not have the ability to seek redress under the Whistleblower Protection Act for employment disputes arising out of from whistleblowing activity.20 Leaving these individuals without any meaningful judicial remedy because of an outdated statutory framework and precedent is unacceptable. The denial of judicial review for adverse personnel actions in the national security sector has prompted numerous attempts by Congress to overhaul the Whistleblower Protection Act of 1989 and to create whistleblower rights for national security employees. Unfortunately, these proposed solutions become bogged down in debates over how to protect national security interests while creating an entirely new judicial or administrative system to handle these employment disputes. This Article will argue that the MSPB and the Federal Circuit, as established venues for federal employment issues, are uniquely situated to adjudicate whistleblower claims arising out of disclosures of Sensitive Security Information. While there are numerous procedural safeguards that must be put in place by the court in order to protect sensitive information, such concerns can be addressed once the MSPB and the Federal Circuit have jurisdiction. Part I presents the overarching goals of whistleblower protections for governmental employees, as seen through the history ofwhistleblower protections. It will also briefly outline the existing statutory and agency procedures for resolving employment disputes arising out ofwhistleblowing activity, noting the inherent difficulty of unauthorized disclosures in the areas affecting na-

'6 MacLean v. Dep't of Homeland Sec., 112 M.S.P.R. 4, 5-6 (2009).

17' Id

" See Jocelyn Patricia Bond, Note, Efficiency Considerationsand the Use of Taxpayer Resources: An Analysis of Proposed Whistleblower Protection Act Revisions, 19 FED. CIR. B.J. 107, 111 (2009). '9 See discussion infra Part II. 20 See ROBERTA ANN JOHNSON, WHISTLEBLOWING: WHEN IT WORKS-AND WHY io6 (2003).

284

THE FEDERAL CIRCUIT BAR

JOURNAL VOL. 20,

No.

tional security. Part II dissects MacLean v. DepartmentofHomeland Security.21 This section demonstrates that, absent a change in jurisdiction for the MSPB and the Federal Circuit, individuals like MacLean will continue to be denied protection from retaliation for whistleblowing. Part III addresses the futility of other proposed solutions. It examines why MacLean had no constitutional protection for his disclosure, and why proposals by the current administration, Congress, and other academics will likely not address the root of the problem. Part IV presents a more workable solution: expanding the jurisdiction of the Federal Circuit and the MSPB to include employment disputes arising from disclosures of Sensitive Security Information. It will address the competing needs of protecting national security and providing a judicial forum for the resolution of these types of disputes.

I. A Brief History of Federal Whisdeblower Protections and Goals A. Goals of Whistleblower Protections
Legal scholars and political theorists have identified several discernable goals and principles by which effective whistleblower legislation is judged.22 23 First, the protection should "serve a truth-advancing function." Public policy ought to encourage federal employees to share the truth about waste, mismanagement, or fraud committed by their respective agencies.24 The act ofwhistleblowing should increase public awareness of environmental, health, 5 and safety problems. 2 Legislative protection from retaliation is integral to the furtherance of this function as it lends the force of law to the deterrence of 6 employment retaliation.2 Second, whistleblower protections serve a democracy-advancing function.27 Whistleblowers participate in making government more transparent, thus

21

112 M.S.PR. 4 (2009).

While many of these principles could apply to whistleblower protections at the state level or in the corporate environment, this Article is limited to a discussion of whistleblower rights for federal employees. For an understanding of these other areas, see generally Wayne N. Outten, When Good Deeds are Punished: The Legal Landscape ofRetaliation and Whistleblowing, in [1] 36TH ANNUAL INSTITUTE ON EMPLOYMENT LAW 2007, at 713, 715-17 (PLI Litig. & Admin. Practice, Course Handbook Series No. H-762, 2007). " Bond, supra note 18, at 108. 2 See H.R. REP. No. 110-42, pt. 1, at 3 (2007).
22 25

JOHNSON, Supra note 20, at 16-17.

26

Bond, supra note 18, at 108.

27 Id. at 108.

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

28 5

making government more responsive to the people.28 The public tends to see whistleblowers in a positive light, rather than as disloyal, because whistleblowing squares with the traditional American value of individualism. 29 Additionally, Americans are often skeptical of government.30 Raising public awareness of governmental failures in monitoring hazards and maintaining safety standards is not only a public service," but also helps motivate others to act to improve the political process. While whistleblower protections can also serve the goal of efficient administration of taxpayer funds, this financial element is beyond the scope of this Article.3 2 Thus, as this Article examines the statutory history ofwhistleblower protections as well as future solutions to whistleblower problems, effectiveness should be viewed through the lenses of the truth-advancing and democracy-enhancing functions of effective whistleblower protections. B. The Civil Service Reform Act and the Whistleblower Protection Act In the United States, the first attempt at providing some level of redress for governmental employees who suffered retaliation for whistleblowing was the Civil Service Reform Act of 1978 ("CSRA").33 The CSRA stated:
Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences-(A) a violation of any law, rule, or regulation, or (B) mismanagement, a gross waste of funds, an abuse of authority, 3 or a substantial and specific danger to public health and safety. "

The CSRA defined eleven prohibited personnel practices that could result 5 in merit system violations. 3 However, the only direct right of action created by the CSRA was for demotions or disciplinary actions greater than a two-week suspension.6 Coincidentally, by 1983, within five years of the CSRA's passage, fear of reprisal among federal employees jumped from nineteen percent to thirty-seven percent. 7 Intergovernmental focus was not on remedying the

"

Joseph Stiglitz, Transparency in Government, in WORLD

BANK INST., THE RIGHT TO

TELL: THE ROLE OF MASS MEDIA IN EcONoMic DEVELOPMENT 27, 29 JOHNSON, supra note 20, at 14, 16.
3o

32-33 (2002).

Id. at 16.

"' Id. at 17.

32 For a full analysis of efficiency considerations for whistleblower protections, see generally Bond, supra note 18. " Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended at various sections of 5 U.S.C.). Id. 101(a), 92 Stat. at 1114 (codified as amended at 5 U.S.C. 2301(b)(9) (2006)). FoundationfortheModern * Thomas M. Devine, TheWhistleblowerProtectionActofl989:

Law ofEmployment Dissent, 51 * Id. at 534. * Id. at 533.

ADMIN.

L. REV. 531, 533 (1999).

286

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20,

No.

problems raised by the whistleblowers, but on discovering the "squealer."" In terms of effective whistleblower protections, the CSRA failed to promote both the truth-advancing and democracy-enhancing functions as its effect was deterrence of whistleblowing activity. The tipping point for further whistleblower reform came on January 28, 1986, when the Space Shuttle Challenger exploded on liftoff, killing all on board, including a school teacher selected for the shuttle mission. 9 Six months prior to the Challenger disaster, Roger Boisjoly, an engineer with a government contractor involved in building the shuttle, wrote a memorandum to his superiors expressing concern over the design of the shuttle fuel tanks.40 Mere hours before the launch, Boisjoly again expressed concern that the launch would result in a catastrophe." After the shuttle exploded, Boisjoly testified before Congress about his concerns and almost immediately suffered employment retaliation.4 2 An intense congressional response prompted Boisjoly's reinstatement,4 3 and the event served as the catalyst for the creation of the Whistleblower Protection Act of 1989 ("WPA")." C. An Overview of Current Procedure for Federal Government Whistleblowers There are two basic paths for whistleblower claims to reach the MPSB and the Federal Circuit: an action brought through and by the Office of Special Counsel ("OSC") 5 and the Individual Right of Action ("IRA"). 6 The IRA is a back-up option for whistleblowers, available only if the OSC declines to pursue a claim.47 The MSPB only hears an IRA after the strict exhaustion of 8 all administrative law alternatives. 4 A valid whistleblowing claim before the

" JOHNSON, supranote 20, at 92.

OrganizationofAmerican " Robert G. Vaughn etal., The histleblowerStatutePreparedforthe Whistleblowers, 35 GEO. WASH. INT'L L. REv. States andthe GlobalLegalRevolution Protecting

857, 857-58 (2003).

40

David Culp, Whistleblowers: CorporateAnarchists or Heroes? Towards aJudicialPerspec-

tive, 13 HOFSTRA LAB. L.J. 109, 110 (1995).

4 Id. at 110-11.
42 Id

at I111.

4 Id. at 112. 4 Vaughn et al., supra note 39, at 858; see Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended at various sections of5 U.S.C.). " 5 U.S.C. 1214(a)(3) (2006). 46 Id. 1221(a). " J. Nelson Wilkinson, Note, No Shelter How the Federal Circuit Misinterpreted the Whistleblower ProtectionAct by Excluding De Minimis Disclosures, 16 FED. CiR. B.J. 481, 485 (2007); see also id at 484-88 (presenting all administrative dimensions of WPA claim).
" Id. at 485.

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

287

MSPB needs three elements: (1) it must be a protected disclosure;' 9 (2) the employee must be in a covered position or agency;"o and (3) the disclosure must have been a contributing factor in a prohibited personnel action." This Article focuses on the first two elements: defining a protected disclosure and the scope of agencies covered. In order for a disclosure to be protected, the disclosure must be information that the whistleblower reasonably believed was evidence of a violation of law or of gross mismanagement, waste of funds, abuse of authority, or a 5 substantial and specific danger to public health and safety. 2 On its face, this definition serves the both the truth-telling and democracy-serving functions of whistleblower protections. It encourages employees to expose the truth about agency decisions, allowing the public to act on better information through the democratic process. Although judicial interpretation has further limited what qualifies as a protected disclosure," the focus of this Article is the statutory limitations on protected disclosures. The first limitation on protected disclosures is that the disclosure cannot be otherwise prohibited by law." To understand this limitation, one must understand the basics of the different classifications for security information as disclosure of classified information is usually prohibited by law. Classified information, which is marked "Top Secret," "Confidential," or "Secret," is governed by Executive Order 13,526." As such, there are specific rules defining what should be classified information, specific prohibitions and limitations on the use of the various markings (e.g., Top Secret), and specific procedures

" See 5 U.S.C. 2302(b)(8). 5o Id. 2302(a)(2)(B)-(C). 51 Id. 2302(a)(2)(A). Prohibited actions include appointments, promotions, disciplinary or corrective action, a detail, transfer, reassignment, reinstatement, restoration, reemployment, performance evaluation, a decision concerning pay, a decision ordering psychiatric testing, or any other significant change in duties. Id. 52 Id. 2302(b)(8)(A). 5 The Federal Circuit has found that disagreement with policy decisions, disclosures made as a part of normal duties, and disclosures made to the individual who is the alleged wrongdoer all fail to qualify as protected disclosures. See Fields v. Dep't of Justice, 452 E3d 1297, 1305 (Fed. Cit. 2006); White v. Dep't of the Air Force, 391 F.3d 1377, 1382 (Fed. Cit. 2004); Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1350 (Fed. Cir. 2001). 5 5 U.S.C. 2302(b)(8)(A).
"

See

HAROLD

C.

RELYEA, CONG. RESEARCH SERv.,

RL 33494,

SECURITY CLASSIFIED

AND CONTROLLED INFORMATION: HISTORY, STATUS, AND EMERGING MANAGEMENT ISSUES 24 (2008). Each recent president has issued an executive order addressing the treatment of classified national security information. See Exec. Order 12,958, 60 Fed. Reg. 19,825 (Apr.

20, 1995) (Clinton); Exec. Order 13,292, 68 Fed. Reg. 15,315 (Mar. 28, 2003) (Bush);
Exec. Order 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010) (Obama).

288

THE FEDERAL CIRCUIT BAR JOURNAL VOL.

20,

NO.

for oversight and review of classifications. 6 Sensitive Security Information, on the other hand, is not governed or created by executive order. It is a designation used and defined by the TSA to indicate information that relates to "critical and noncritical infrastructure assets."" Disclosure ofSensitive Security Information to anyone other than those with a need to know is a violation of agency regulation and thus prohibited by law." The WPA further limits the scope of protection by specifically denying protection to all employees of the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National GeospatialIntelligence Agency, the National Security Agency, and any other agency determined by the President to have as its principle function intelligence or counterintelligence activities." This is significant as MacLean's employers, the Department of Homeland Security and the Transportation Security Administration, are new agencies not envisioned by the drafters of the WPA.6 The WPA's exclusion of any agency determined to have "as its principle function intelligence or counterintelligence activities"" leaves open the possibility for the abrogation of whistleblowing rights of hundreds of thousands of DHS and TSA employees."

II. The WPA Is Insufficient to Provide Protection for What Otherwise Would Be Impermissible Retaliation as Illustrated by MacLean v. Department ofHomeland Security
Although Robert MacLean's actions fulfilled the goals of whistleblowing, the system failed to provide him with protection. He told the truth about what he believed to be a danger to public health and safety, serving the

See RELYEA, supra note 55, at 24. * Id. at 16-17. The term "Sensitive Security Information" is a nebulous term. It is also used by the United States Department of Agriculture but with a different definition and different policies governing its use. See id. at 12-15. ' 49 C.ER. 1520.9(a)(2) (2009). " 5 U.S.C. 2302(a)(2)(C)(ii). 6 The TSA was created on November 19, 2001. Transportation Security Administration, Our History, http://www.tsa.gov/research/tribute/history.shtm (last visited October 17, 2010) [hereinafter TSA History]. The DHS became operational in January 2003, and the TSA transferred to the DHS from the Department of Transportation in March 2003. ELIZABETH C. BORJA, DEPT OF HOMELAND SEC., BRIEF DOCUMENTARY HISTORY OF THE DEPARTMENT OF HOMELAND SECURITY: 200I-2oo8, at 10 (2008), http://www.dhs.gov/ xlibrarylassets/brief documentary-history-of dhs_2001_2008.pdf. 6' 5 U.S.C. 2302(a)(2)(C)(ii).
56 62

See discussion infra Part IV.

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

189

truth-advancing function of a whistleblower." His actions provoked a swift congressional response, furthering the democracy-enhancing function of a whistleblower." Yet, the DHS and the TSA fired MacLean in April 2006.65 Almost one year later, while MacLean's appeal of his termination was before the MSPB, the TSA issued a Final Order regarding MacLean's text message." The order was barely two pages, stating that agency attorneys had asked for a final determination regarding the nature of MacLean's text message and that "[p]ursuant to 4 9 U.S.C. 144(s) and 49 C.F.R. Part 1520 ... the information in question constituted [Sensitive Security Information]."67 MacLean had no opportunity to present evidence before the TSA, and he had not been given notice that the TSA was in the process of establishing this Final Order.8 The TSA's Final Order ended MacLean's ability to receive judicial review from the MSPB and the Federal Circuit for his firing as a whistleblower. Disclosure of Sensitive Security Information is prohibited by law,69 and the WIPA does not cover disclosures prohibited by law. 0 MacLean's only recourse was to appeal the Final Order categorizing his disclosure as Sensitive Security Information-not the prohibited personnel action." The Ninth Circuit heard the case because of its jurisdiction under 49 U.S.C. 46110(c), 72 and determined that, strictly speaking, the Final Order classifying MacLean's text as Sensitive Security Information was valid.73 Additionally, the Ninth Circuit rejected MacLean's argument that the TSA's post hoc determination of Sensitive Security Information constituted a prohibited "personnel action."7 ' The Final Order was not, in and of itself, a personnel action, even though it effectively prevented MacLean from pursuing an otherwise valid claim before the MSPB and the Federal Circuit.75 After the Ninth Circuit's decision, the MSPB stated that it no longer had jurisdiction over the claim because the MSPB

63

See discussion supra Part I.A.

"
6

See id.

MacLean v. Dep't of Homeland Sec., 112 M.S.PR. 4, 6 (2009). 66 Final Order on Sensitive Security Information in Connection with MacLean v. Dep't of Homeland Sec., No. SF-0752-06-0611-1-1 (MSPB) (Transp. Sec. Admin. Aug. 31, 2006) [hereinafter TSA Final Order], available at http://www.pogoarchives.org/m/hsp/ MacLeanFinalOrderSSI.pdf.
67 6 6 7o 7 72

Id
MacLean, 543 E3d at 1149. 49 C.F.R. 1520.9(a)(2) (2009). 5 U.S.C. 2302(b)(8)(A) (2006).

See MacLean, 543 E3d 1145.

Id. at 1149 (noting jurisdiction to hear final agency orders).

73
7

Id. at 1150.

Id. at 1150-51. 75 See id.

290

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20, No. 2

does not have authority to review the TSA's Sensitive Security Information

determination7 and because the Board only has jurisdiction under the WPA to hear claims arising out of disclosures not specifically prohibited by law.77 In MacLean's case, a government agency was able to prevent a whistleblower from having his claim heard by the MSPB. This was simply accomplished by writing a two-page letter almost one year after the employee was fired, stating that in the opinion of one agency officer the disclosure made was Sensitive Security Information.78 This should cause alarm for three reasons. First, it shows the ease with which an agency was able to avoid review of its actions by the MSPB. Second, the process by which the TSA designates, monitors, and controls Sensitive Security Information lacks transparency or operating guidelines 7 thus increasing the need for whistleblowers to serve the truthadvancing function.o Third, distilling the facts of MacLean's situation into its basic elements reveals a discrepancy in whistleblowers' rights in the federal government. MacLean disclosed a management decision, that he reasonably believed was gross mismanagement and a danger to public safety, and that disclosure resulted in his termination."' Yet, the post hoc determination by the TSA that his disclosure was Sensitive Security Information eliminated his ability to receive redress. These facts indicate that the whistleblower protection process of the WPA is not functioning properly, at least with respect to the disclosure of Sensitive Security Information. Individuals in MacLean's situation will see that no process can protect them when they share a necessary truth with the American people, chilling the disclosure of information that might save lives. Such fear defeats the truth-advancing function of effective whistleblower protections.82 Poor transparency in the process for the designation of Sensitive Security Information lends itself to the very type of governmental abuse that whistleblowers are supposed to expose. Additionally, these facts defeat the democracy-enhancing function of effective whistleblower protections as the public has less information with which to make democratic choices." These concerns illustrate the need for change in the structure ofwhistleblower protections for federal employees.

76

MacLean v. Dep't of Homeland Sec., 112 M.S.P.R. 4, 11 (2009).

n Id. at 13. 78 See TSA Final Order, supra note 66. The letter is signed by one agency official, Andrew Colsky, and is written in the first person. See id. " See Relyea, supra note 55, at 24-25. " See discussion infra Part IV. " See discussion supra Part LC (describing basic elements of a claim under the WPA); see also 5 U.S.C. 2302(b)(8)(A) (2006). 82 See discussion supra Part I.A.
8

See id.

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

291

III. Incomplete or Ineffective Solutions: Why MacLean Had No Other Viable Recourse
Permeating the need to expand the jurisdiction of the Federal Circuit and the MSPB to cover whistleblower claims relating to the disclosure of Sensitive Security Information is the ineffectual nature of other possible solutions. Existing and proposed solutions available to someone in MacLean's situation would not provide the level of protection offered by expanding the jurisdiction of the MSPB and the Federal Circuit. A. The First Amendment Likely Provides No Protection for Sensitive Security Information Whistleblowers
8 In Garcettiv. Ceballos,4 the Supreme Court held that the First Amendment did not protect a whistleblowing federal employee from retaliation where the employee's disclosures were made as a part of his official responsibilities." When Ceballos, a deputy district attorney in Los Angeles, disclosed to his superiors that an affidavit contained factual errors, he was denied promotion 6 and transferred." The Supreme Court found that when disclosures are made pursuant to official responsibilities, a federal employee is speaking as an instrument of the government, not as a citizen.87 There can be no comparison to citizen speech protected by the First Amendment." In light of Garcetti, most attempts to litigate whistleblower claims under the First Amendment would not further the truth-telling function of whistleblower protections. On the one hand, an individual in MacLean's situation would not be forced to show that she reasonably believed her disclosure to be evidence of fraud or an issue of public safety, i.e., that the disclosure made was reasonably true. Rather, judicial analysis would focus on defining the scope of an employee's "job duties," instead of on an initial showing of truthfulness." On the other hand, much of what would be considered a protected disclosure under the WPA, for example a memo written to a supervisor discussing the discovery of fraud in a government contract, would not be protected by the First Amendment under this standard as it would be pursuant to official

" 547 U.S. 410 (2006).

8 See id. at 418. For those interested in a broader discussion of the implications of Garcetti, see Stephen I. Vladeck, TheEspionageActandNationalSecurityWhistleblowingAfierGarcetti, 57 AM. U. L. REv. 1531 (2008). * Garcetti, 547 U.S. at 414-15. 8

Id. at 42 1.

" Id. at 424.

19 Vladeck, supra note 85, at 1540 n.50 (noting that the focus of post-Garcetticourts will likely be on the true scope of a government employee's job duties).

292

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20, No. 2

responsibilities. Moreover, there is concern that Garcetti is being expanded by lower courts to include all speech that an employee is able to make only by virtue of governmental employment.o The First Amendment cannot be a reliable source of protection for whistleblowers like MacLean. B. The Procedure of the Intelligence Community Whisdeblower Protection Act is Insufficient At first blush, the Intelligence Community Whistleblower Protection Act of 1998 ("ICWPA") could cover MacLean and other whistleblowers who might disclose Sensitive Security Information.9 Unlike the WPA, the ICWPA covers any employee or contractor in the intelligence community and provides procedures for making disclosures to Congress. A whistleblower must first inform her agency's inspector general of the potential need for disclosure and may contact an intelligence committee member in Congress only if the agency director has been provided with copy of the disclosure, notice of the intent to contact Congress, and the whistleblower obtains and follows the director's instructions on how to contact Congress in accordance 3 with appropriate security practices. 9 However, this legislation has several serious shortcomings, and it is highly unlikely that MacLean would have fallen under its protection. First, the procedures for lawful disclosure are premised on a perverse incentive. The statute requires oversight and permission from the very agency whose failures have prompted the whistleblower to act." Effective whistleblowing cannot operate under the supervision of the offending agency. The procedures in the ICWPA amount to asking a fox to watch the henhouse. Second, the ICWPA would not have protected MacLean as a matter of timeliness. Even if disclosures were allowed by an agency director under the ICWPA, the time-frame for action would have precluded MacLeans disclosure from being effective. By law, the ICWPA process could take at least twentyone days between when an employee makes a disclosure to the inspector general and when that information reaches Congress.95 After ten days-the

90 Id.

* Intelligence Community Whistleblower Protection Act of 1998, Pub. L. No. 105-272, 112 Stat. 2396, 2413-17. 702, 112 Stat. at 2414-16. 92 Id. 9 Id. For a complete discussion of the history of the ICWPA and the constitutional battle surrounding its passage, see Thomas Newcomb, In From the Cold: The Intelligence Community Whistleblower ProtectionAct of 1998, 53 ADMIN. L. REv. 1235 (2001). 1 See Intelligence Community Whistleblower Protection Act 702, 112 Star. at 2414-16. 95 See id. 702(a)(1), 112 Star. at 2416.

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

2,93

-MacLean's disclosure time during which the overnight stays were cancelled 96 would have been of no use. Since the overnight stays for the air marshals were only canceled for a short period of time, the ability for the disclosure to protect public safety was temporally limited. If disclosure was made after ten days, the potentially dangerous security conditions could not possibly have been remedied. Hindsight would be the only way to evaluate these lapses in security, and if a tragedy occurred during that period, subsequent disclosure would be immaterial. C. The Obama Administration's Proposal Faces Political Difficulties and Over-Reaches in Its Solution A central campaign promise of then-presidential candidate Barack Obama was to increase protection for whistleblowers. His "Plan to Reform the Greed and Excesses of Washington" stated:
Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled as they have been during the Bush administration. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing 97 whistleblower claims and whistleblowers have full access to courts and due process.

On March 12, 2009, Democrats introduced H.R. 1507 in Congress."

The legislation was designed to enhance whistleblower protections for federal employees and contractors, but the proposed solutions were rather extreme, including stripping the Federal Circuit of jurisdiction to review MSPB decisions and placing whistleblower cases in the hands of juries at the district court level.99 While laudable, Obama's campaign goals quickly faced the political reality that some ideas wither when placed in the hands of Congress. At a hearing on

' See MacLean v. Dep't of Homeland Sec., 543 E3d 1145, 1148 (9th Cir. 2008) (per curiam). 9 Mike Allen, Obama Vows to Cut Contracts by 10 Percent, POLITICO, Sept. 22, 2008, http://www.politico.com/news/stories/0908/13727.html. 9' Whistleblower Protection Enhancement Act of 2009, H.R. 1507, 111th Cong. (2009); see H.R. 1057: Whistleblower Protection Enhancement Act of 2009, http://www.opencongress.org/bill/1 1 1-hl507/show (last visited Oct. 17, 2010). It should be noted that this bill has stalled in committee and will likely not pass the House as no major action has been taken since early 2009. Id. The bill is only mentioned as the backdrop for the Obama Administration proposal. A similar bill is also pending in the Senate. See S. 372, 111th Cong. (2009). " See H.R. 1507 9(a)-(b).

294

THE

FEDERAL CIRCUIT BAR JOURNAL VOL. 20,

No.

H.R. 1507, the Administration indicated that the congressionally proposed changes to whistleblower protection were too broad and proposed its own solution that would directly affect future disclosures of the type made by MacLean.' 0 The Administration stated that for any whistleblowing activity that implicates national security concerns (such as the disclosure of Sensitive Security Information), there should be an extra-agency board of employment appeals."o' This Board would be comprised of presidentially-appointed officials from various agencies to make sure that no one particular agency could hide its own wrongdoing.'02 This entity would provide some level of review for actions by an agency head with regards to an employee's concerns, and it 3 would be able to overrule the agency head on these issues. 0 More importantly, individual employees would be allowed to inform Congress that they had started this process. This would allow Congress to be aware that a concern has been raised, even if it currently did not have the details of the disclosure.o 4 While this proposal would provide greater protection for federal employees like MacLean, it creates an inherent conflict of interest. This plan does not provide any level of judicial review for a final decision of the extra-agency board of appeals. Though it is better than the blatant fox/henhouse scenario of the ICWPA, it does not provide true openness and transparency. Wrongdoing at the agency level could still be hidden at the executive branch level. Administrative adjudication of employment retaliation claims behind closed doors, without any check from the judicial branch, fails to serve the functions of whistleblower protections. It is a rudimentary principle of American governmental structure that the government must be constrained in order to prevent injustice.' In the famous essay, Federalist No. 51, James Madison cautioned the American people against allowing the government to act un0 checked. "Ambition must be made to counteract ambition," Madison wrote.' 6 An executive branch determination regarding employment retaliation against a whistleblower, in the absence of any judicial review, remains unchecked and would still leave individuals like MacLean without any meaningful recourse. Congress has previously expressed concern about the conflict between whistleblower rights and classification procedures. In 1988, the House Com-

100 See Whistleblower Protection EnhancementAct of 2009: Hearing on H.R. 1507 Before the H. Comm. on Oversight & Government Reform, 111th Cong. 54-73 (2009) (statement of Rajesh De, Deputy Assistant Att'y Gen., Office of Legal Policy, Department of Justice).

"oI Id. at 56 .
102 03 04 0I 106

Id. Id Id. See THE Id.

FEDERALIST No.

51 (James Madison).

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

295

mittee on Government Operations issued a report on the controversial use of nondisclosure contracts for federal employees and federal contractor employees having access to classified national security information.'o The Committee report foreshadowed MacLean's situation and counseled against allowing ex post labeling of "classifiable" material.'o The report states:
The Administration's most recent attempt to define "classifiable" holds employees liable for disclosures of unclassified information, without any prior notice to them of its special status. Under Executive Order 12356, classified information is marked as such. Even information that is in the process of a classification determination is given an interim classification marking for a 30-day period. The employee is, therefore, aware of its special status. Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to the material. Consequently, they must check with their superiors, thereby alerting them to the disclosure. That invites a chilling effect.... If the employee is not certain if information might some day be classified, he or she must ask a supervisor. As a result, the potential whistleblower would be identified (incurring risk of retaliation), and the supervisor could block disclosure of the information, even if it was not classified and had [sic] never intended to be classified, but was simply embarrassing to the Administration.' 09

Additionally, enforceability of administrative decisions against agencies is already fraught with difficulty. Even in MacLean's case, his attorneys struggled to depose a TSA employee designated by the agency as an expert in the determination of what is Sensitive Security Information. Multiple requests were made and multiple orders were issued by the MSPB administrative judge handling the case, but the TSA repeatedly stonewalled and refused to allow the deposition."o If there is no level of judicial review from a court entirely outside the executive branch, no whistleblower can be certain that if, for example, they win a judgment for reinstatement and back pay that such an order would be followed. This in turn will decrease the likelihood that whistleblowers will step forward and make these needed disclosures.

IV. A Practical Solution: A Jurisdictional Change to Provide Protection

Judicial review should be expanded to protect whistleblowers like MacLean. Specifically, the jurisdiction of the Federal Circuit and the MSPB

" H.R. REP. No. 100-991, at 1 (1988). See id. at 10. Id. at 10 n.36 (internal citations and quotations marks omitted). "o See Order on Discovery Motions, MacLean v. Dep't of Homeland Sec., No. SF-075206-0611-1-1 (MSPB Aug. 21, 2006), http://pogoarchives.org/m/hsp/graceson-declaration. pdf; Order Denying Agency Motions, MacLean, No. SF-0752-06-061 1-I-1 (MSPB Sept. 8, 2006), http://pogoarchives.org/m/hsp/graceson-declaration.pdf.

296

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20, NO. 2

should be statutorily expanded to cover whistleblower claims arising out of disclosures of Sensitive Security Information as well as disclosures made by TSA employees generally. A. The First Step: Changing the Scope of Protected Disclosures From a practical standpoint, the first step must be legislative action. As noted by the MSPB in MacLean's case, the Board, and thus the Federal Circuit, only have jurisdiction over whistleblower claims arising out of disclosures not specifically prohibited by law."' Currently, regulations governing the use or dissemination of Sensitive Security Information state that it is improper to disclose or otherwise provide access to Sensitive Security Information to individuals who are not on a need-to-know basis.112 Thus, disclosure of Sensitive Security Information by MacLean or other similarly situated individuals places them outside the protection of the WPA." 3 Changing the definition of protected disclosure for the purposes ofthe WPA will address this problem. While it would be imprudent to remove from the WPA all requirements that the disclosure not be prohibited by law, it could easily be amended to create an exception for material alleged or determined to be Sensitive Security Information. An addition to 5 U.S.C. 2302(b)(8) (A) need only say that for the purposes of this section, "disclosure prohibited by law" does not include disclosures arising from a disclosure of Sensitive Security Information. The MSPB and Federal Circuit would not be allowed to question a designation of Sensitive Security Information, but the MSPB and the Federal Circuit would not be precluded from hearing a whistleblower claim just because the disclosure is determined by the retaliating agency to be Sensitive Security Information. The narrow scope of this solution helps to balance the competing interests of whistleblower protections and executive prerogative in national security matters."4 B. The Transportation Security Administration Must Be Explicitly Included in the Scope of the WPA Another factor that has caused the failure of the WPA is the statute's age. It was passed in 1989."1 The TSA was created in November 2001 as a response to the 9/11 attacks on the World Trade Center and the Pentagon."' The gap

MacLean v. Dep't of Homeland Sec., 112 M.S.PR. 4, 12-13 (2009). 112 49 C.ER. 1520.9(a)(2) (2009). " See MacLean, 112 M.S.P.R. at 18. " See discussion infra Part IVC. " Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified as amended at various sections of 5 U.S.C.).
"' TSA History, supra note 60.

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

197

between the passage of the WPA and the creation of the TSA is problematic because of the manner in which WPA defines covered agencies. The WPA does not cover any agency or unit of an agency determined by the President to have as its principle function intelligence or counterintelligence activities." The WPA did not seem to contemplate the creation of hybrid agencies like the TSA. While the TSA does play a role in the intelligence community as evidenced through its offices of intelligence, transportation threat assessment, and federal air marshal services,"' it also plays a critical role in the inspection of airport services and oversees hundreds of millions of federal contract dollars." 9 There is a great likelihood that disclosure by whistleblowers from the TSA will relate solely to fraud, gross mismanagement, or a substantial, specific danger to public safety rather than to issues solely of national security or intelligence. Also, because of the increasing role the TSA plays in the daily lives of Americans, whistleblowing from this agency in particular ought to be encouraged as promoting a democratic function. The WPA can easily be amended to accommodate this. All that would be necessary is a clause specifying that the TSA is a covered agency for the purposes of 5 U.S.C. 2302(a)(2)(C). Such a clear legislative statement would render moot any need for statutory interpretation, and thus avoid the possibility that future individuals in MacLean's situation would be denied protection under the WPA. C. These Solutions Help Achieve a Balance Between the Competing Needs of Governmental Accountability and National Security The proposed solution of expanding the whistleblowing jurisdiction of the Federal Circuit and the MSPB to include disclosures of Sensitive Security Information hits at the nexus between governmental accountability and national security. Both are necessary interests. However, both appear to be conflicting interests. This solution attempts a balance between the two. On the one hand, necessary goals are served bywhistleblower protections. At a theoretical level, these goals include the exposure of truth about dangerous, fraudulent, or irresponsible actions of government agencies.' 20 However, the exposure of truth is not an end in itself. Rather, truth and transparency are

"1 5 U.S.C. 2302(a)(2)(C)(ii) (2006).

"' Transportation Security Administration, Organization Chart, http://www.tsa.gov/ whoweare/org/editorial-multi-image withtable_0102.shtm (lastvisited Oct. 17, 2010). "' See, e.g., Press Release, Transp. Sec. Admin., TSA Awards Contract for Information Technology Infrastructure (Sept. 28, 2009), http://www.tsa.gov/press/releases/2009/0928. shtm (announcing that the TSA had awarded a contract valued at $493 million).
120

Bond, supra note 18, at 108.

298

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20,

No.

valuable for their role in spurring a democratic response to keep the government in check. While a free press and free speech can assist in this process, 2 these are not sufficient for optimum transparency.1 ' Government officials, such as MacLean, might be the only possible sources for information on issues of public safety, leaving the public without an effective substitute.'22 This artificial restriction of information negatively impacts the proper functioning of a democratic marketplace through decreased voter participation and fewer competing ideas.'23 Conversely, the government needs to maintain a certain level of secrecy in order to protect citizens from the attacks of enemies. These national security considerations counsel against the disclosure of classified material or information that could be used by terrorists to threaten the public safety. Expanding the scope of whistleblower protections would make it easier for journalists and government employees to become "a law unto themselves."'24 It would effectively replace the power of the presidency to decide what should be classified material with the discretion of journalists and perhaps disgruntled intelligence employees to decide whether information should be released for public consumption. Democracy would suffer if whistleblower protections were extended too far because it would place the decision to release potentially damaging information into the hands of individuals who cannot be held accountable through the electoral process. Allowing the MSPB and the Federal Circuit to hear whistleblower cases even when they involve the disclosure of Sensitive Security Information helps to ensure that an already suspect classification system is not abused to become a vehicle for an agency or managers to retaliate against employees. As previously discussed, Sensitive Security Information is designated in a very different manner than other classified information, which is marked "Top 2 Secret," "Confidential," or "Secret."" While there are penalties for the unauthorized disclosure of Sensitive Security Information, as painfully seen through the case of MacLean, there is essentially no oversight for its use. In 2005, the Government Accountability Office assessed the TSA's management of Sensitive Security Information.126 It found that the TSA has no written policies and procedures beyond its

121
122 123

See Stiglitz, supra note 28, at 31.

Id

See id. at 33. See, e.g., Scott Johnson, Did the New York Times Break the Law with Its Wire-tapping Story?, WKLY. STANDARD, Jan. 24, 2006, http://www.weeklystandard.com/Content/Public/ Articles/000/000/006/6311ksqg.asp?pg=2. 125 See discussion supra Part I.C. '" RELYEA, supra note 55, at 25.
124

PROTECTING WI-USTLEBLOWERS

THROUGH

EXPANDED JURISDICTION

299

Sensitive Security Information regulations for determining what constitutes Sensitive Security Information; no policies and procedures specifying clear responsibilities for officials who can designate Sensitive Security Information; inadequate internal controls to provide reasonable assurance that its Sensitive Security Information designation process is being consistently applied across the agency; and no policies or procedures to train employees on how information is to be identified and evaluated as Sensitive Security Information.127 There is the additional pitfall of overclassification.'" The ability to classify information is a powerful tool of the modern executive, intrinsically plagued 9 with the potential of broad discretion and abuse.12 Some critics argue that increased protection for national security whistleblowers would be beneficial because of the occurrence of "unlawful secrets" in the past several years.'o Increased protection for both the whistleblowers and for the recipients of such information, like the media, they argue, would be beneficial because information-sharing and opinion-sharing is at the core of the First Amendment. "The right to express viewpoints would mean little if government could stifle the exchange of facts underlying such viewpoints.""'
These criticisms should carry even more weight when applied to the cat-

egory of Sensitive Security Information. It is a category with essentially no oversight. 3 2 The fact that the TSA has no official procedure governing who can or cannot determine that certain information was Sensitive Security Information should alone raise a red flag concerning MacLean's case. The Sensitive Security Information determination in his case was made by a single individual,"' without an opportunity for MacLean to comment or offer countervailing evidence.'34 Finally, giving the MSPB and the Federal Circuit jurisdiction over whistleblowing claims arising out of disclosures of Sensitive Security Information protects separation of powers. In the realm of national security issues, "the Executive's constitutional authority is at its broadest" and the role ofthe judiciary is limited.'35 This solution respects the need for some level of governmental secrecy, particularly executive-level classification determined by set policies with sufficient oversight, while providing federal employees with an avenue

127 128

Id.
See Heidi Kitrosser, ClassifiedInformation Leaks and FreeSpeech, 2008 U. ILL. L. REV.

881, 884. 129 See id.

13

'' 132 133

1 13

Vladeck, supra note 85, at 1531-32. Kitrosser, supra note 128, at 906-07. See RELYEA, supra note 55, at 25. See TSA Final Order, supra note 66. MacLeanv. Dep't ofHomeland Sec., 543 E3d 1145, 1149 (9th Cir. 2008) (per curiam). El-Masri v. United States, 479 E3d 296, 303 (4th Cir. 2007).

300

THE FEDERAL CIRCUIT BAR JOURNAL

VOL. 20, NO. 2

to protest retaliation. As noted above, the Federal Circuit and the MSPB would not be allowed to upset a Sensitive Security Information designation." D. This Solution is Pragmatic and Easier to Attain than Other Alternatives A change in jurisdiction requires congressional action, and politics is the art of the possible. This solution is more readily attainable than one of the theoretical alternatives: an entirely new court system for national security cases. During years following the 9/11 attacks, numerous scholars have debated the need for a new Article III court dedicated to national security issues, along with the merits and scope of such a court.' While the exact details of the system would be "up for grabs," its bones would be "[a] system staffed by federal judges, with experienced counsel on both sides, in which the government would have an ability to temporarily detain a dangerous individual."' However, the debate surrounding such a court is focused on the broader and more difficult issue of whether a separate judicial system could "provide an effective means for detention, treatment, and trial of suspected terrorists."'19 There appears to be no discussion of the integration of national security whistleblower cases into the framework for a new Article III court. Relying on a non-existent court system to protect the rights of future national security whistleblowers is ineffective. Additionally, a separate Article III court designed specifically for national security concerns would simply enhance jurisdictional confusion over whistleblower issues. It would either create the same result as seen in MacLean (i.e., an agency determination of disclosure of Sensitive Security Information leaving the whistleblower without a remedy), or it would require that the case and issue be permanently removed from the jurisdiction of the Federal Circuit and MSPB, taking it from the system that already has the expertise to handle agency employment disputes.

See discussion supra Part IV.A. " CompareKevin E. Lunday & Harvey Rishikof, Due ProcessIs a Strategic Choice: Legitimacy andthe Establishmentofan Article I NationalSecurity Court,39 CAL. W INT'L L.J. 87 (2008), andGlenn Sulmasy, The Needfora NationalSecurity CourtSystem, 23 ST. JOHN'S J. LEGAL COMMENT. 1007 (2009), with Stephen I. Vladeck, The Case Against NationalSecurity Courts, 45 WILLAMETTE L. REV. 505 (2009). 'M Neal Katyal, A NationalSecurity Court:Not Now, Not Yet, GEO. SECURITY L. BRIEF, Oct. 1, 2008, http://www.securitylawbrief.com/commentary/2008/10/a-national-secu.html. 9 Lunday & Rishikof, supra note 137, at 94.
'3

PROTECTING WHISTLEBLOWERS THROUGH EXPANDED JURISDICTION

3OI

E. This Solution Fosters the Equalization of Federal Employment Rights at the Intra- and Extra-agency Levels Giving the Federal Circuit and the MSPB jurisdiction over whistleblowing actions arising out of the disclosure of Sensitive Security Information would equalize employment rights for federal employees in two ways. This is an added benefit, above and beyond the basic goals of whistleblower protections. First, an employee in a different agency who makes a disclosure under a similar fact pattern is able to appeal a prohibited personnel action to the MSPB. As previously mentioned, Sensitive Security Information is a label used only by the TSA and the limitations on disclosure of Sensitive Security Information are unique to the TSA.uo Thus a federal employee in another agency disclosing substantively similar information has the right to an appeal that an employee in MacLean's situation does not. Second, even other employees within the TSA might have the right to appeal a prohibited personnel action, unlike employees in MacLeans situation. For example, suppose that the TSA awards a contract for providing security services at Reagan National Airport, and that a procurement officer discloses the fact that a manager instructed him to accept a bid that was not the lowest bid, and subsequently suffers a prohibited personnel action. It would amount to a (1) disclosure of a management decision; (2) that reasonably evidences gross mismanagement or fraud; and (3) that results in a prohibited personnel action."' This scenario could at least be heard by the MSPB and the Federal Circuit, granting employment rights to an employee in the same agency as MacLean that he does not have. The only differentiating factor is that MacLean disclosed what was after the fact determined to be Sensitive Security Information. Expanding the jurisdiction of the Federal Circuit and the MSPB as outlined here would remove this discrepancy in whistleblower rights for federal government employees. E This Solution Promotes Judicial Efficiency While Minimizing Institutional Costs Any change to government or judicial procedure raises concerns of institutional cost and efficiency. Expanding the jurisdiction of the Federal Circuit and the MSPB is an efficient solution for several reasons. First, this court already exists. While this may seem pedantic, simply modifying the jurisdiction of an existing court as opposed to creating a new court is efficient. There would be no startup costs, as there would be by creating a new court with new judges, new buildings, and new staff. Additionally, because the Court and the

See supra notes 57-58 and accompanying text. "' See discussion supra Part I.C (describing basic elements of a claim under the WPA).
1o

302

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20,

No.

MSPB already exist, fewer legislative resources will be used hammering out the details of a new court. As illustrated above in the discussion of proposed national security courts,14 the creation of a new court would be dominated by much weightier issues like how to balance individual freedoms and human rights with the need to protect national security. While this solution is not immune to debate, it would likely be on a much smaller scale than the debate surrounding the creation of national security courts. Another efficiency benefit would be the timing of a change to the judicial system. Former Georgetown University Law School Professor and current Acting Solicitor General Neal Katyal wrote that a change of the court system should not be accomplished during a presidential election cycle."I While he was discussing this in relation to the creation of a national security court, his argument can be applied to any change in the judicial system. Modification of the judicial system should be done delicately, appreciating the risks involved."' He states that the worst time to consider changes is during an election cycle because "rush[ing] to judgment produces slogans without a sustainable product.""' Thus, the timing for changing the jurisdiction of the Federal Circuit is ripe. Two years have passed since the most recent presidential election, allowing Congress and the Administration to face the problem of national security whistleblowers without the distraction of lofty campaign slogans and empty rhetoric that would derail the issue. Working on the change now would create a well-reasoned product and a thoughtful change to jurisdiction. Finally, expanding the jurisdiction of the Federal Circuit and the MSPB is efficient because there would be no need to establish new precedent and procedures. These two judicial bodies have been hearing issues relating to federal employees for decades. They have institutional experience in whistleblower cases that would be difficult initially to match through the creation of another court. However, critics state that the Federal Circuit has demonstrated a hesitance to rule in favor of whistleblower employees in WPA retaliation cases."' Supposedly, since 1994, the Federal Circuit has ruled in favor of federal employee whistleblowers in only two out of 204 cases.' 7 This outcome is due, in part, to the Federal Circuit's restrictive interpretation of the WPA."'

14

See discussion supra Part IV.D.

"
1"

Katyal, supra note 138.

Id.
Id Bond, supra note 18, at 112. Id Id

'45
146 .47

148

PROTECTING WHISTLEBLOWERs THROUGH EXPANDED JURISDICTION

3O3

While it is true that sometimes the MSPB and Federal Circuit's interpretation of the WPA is incongruous,' the situation is not as dire as critics suggest. A very basic search of cases from the Federal Circuit and MSPB reveals at least four cases within the last two years that have upheld the rights and protections of federal whistleblowers.' Furthermore, looking only at cases decided by the Federal Circuit will not provide an accurate reflection of the effectiveness of precedent and the WPA, as this count will not include cases decided in favor of the whistleblower by the Office of Special Counsel.'' Moreover, it will not include all the times the Office of Personnel Management chooses not to appeal a decision to the Federal Circuit,'52 and it does not take into account the discretion the Federal Circuit has in granting appellate judicial review when sought by the government.'"15us, concerns that Federal Circuit jurisprudence does not sufficiently protect whistleblowers should not be a hindrance to the expansion of its jurisdiction as proposed here.

Conclusion
MacLean's tale illustrates the need to expand the whistleblower jurisdiction of the MSPB and the Federal Circuit to include disclosures of Sensitive Security Information. Whistleblower protections cannot advance truth or promote democracy if they are predicated on unequal employment rights for federal workers or subject to abrogation through the acts of managers and bureaucrats. The limitations of the WPA have been outgrown by the realities of modern security classification structures like Sensitive Security

"' See, e.g., Huffman v. Office of Pers. Mgmt., 263 F.3d 1341 (Fed. Cir. 2001). This case held that the WPA does not protect a disclosure if the disclosure is made to the individual who is the alleged wrongdoer. Id. at 1344. The rationale is that such "disclosure" cannot actually take place because the wrongdoer already knows of the wrongful conduct because he is the one engaged in it. Id. at 1350. Supposedly, an "employee[] should [only] make disclosures to those who can rectify [a] wrongdoing [and] the supervisor who has allegedly committed the wrongdoing is not such a person." Paul Janoff, Key Terms in the Whistleblower Protection Act Clarified,ARMY LAw., June 2003, at 22, 23. '0 See Elkassir v. Gen. Servs. Admin., 325 Fed. App'x 909, 913 (Fed. Cir. 2009) (per curiam) (reversing the MSPB's denial of corrective action under the WPA); Durr v. Merit Sys. Prot. Bd., 297 Fed. App'x 966, 969 (Fed. Cir. 2008) (per curiam) (affirming MSPB's decision that whistleblower made non-frivolous claims of gross mismanagement); Ryan v. Dep't of the Air Force, 113 M.S.P.R. 27, 28 (2009) (vacating initial denial for corrective action under the WPA); Inman v. Dep't of Veterans Affairs, 112 M.S.PR. 280, 280 (2009) (reversing denial of IRA). 4 15 See 5 U.S.C. 121 (a)(3) (2006). 152 See 5 U.S.C. 7703(d) (providing for OPM's discretion in pursuing appeal from an MSPB decision to the Federal Circuit.).
15

Id.

304

THE FEDERAL CIRCUIT BAR JOURNAL VOL. 20,

No.

Information. Due to Garcetti, the Constitution cannot provide relief for citizens in MacLean's situation. Other proposals, whether existing statutes like the ICWPA or political proposals such as the Obama administration's plan, not only fail to address the core of the problem but lack the necessary pragmatic considerations. Changing the jurisdiction of the Federal Circuit to include whistleblower claims arising out of the disclosure of Sensitive Security Information is judicially efficient, will help balance the competing
needs of national security and whistleblower protections, and is pragmatically

achievable. While there is still much to be discussed and researched, such as best practices and procedures for dealing with Sensitive Security Information by the MSPB and the Federal Circuit, these issues can be worked out once the jurisdictional change is made. As noted above, effective whistleblower protections serve to protect democracy as the former necessarily informs and educates the choices of the latter. Now the tables have turned. Legislative action by Congress is the essential first step in protecting the whistleblowers. This step must be taken now.