Federal agencies should not be allowed to dodge whistleblower protections by adapting rules prohibiting the disclosure of certain information, the Office of Special Counsel (OSC) advised the U.S. Supreme Court in a brief Monday.
The brief was filed in support of Robert MacLean, a former Transportation Security Administration (TSA) air marshal who was fired in 2006 after blowing the whistle on the agency’s plans to stop placing air marshals on long-distance flights amid heightened terrorist threats to air travel.
The Supreme Court is expected to hear oral arguments in the case starting November 4. In April 2013, a Federal Circuit Court sided with Mr. MacLean, finding that the disclosures he made about the TSA’s plans to scale back security were protected under federal whistleblower laws. The TSA disagreed with the ruling, pushing the case to the Supreme Court.
In its brief, the OSC argued that if the Supreme Court were to reverse the lower court’s ruling and side with TSA, it would seriously harm the “OSC’s ability to enforce … whistleblower protections and deter agencies from retaliating against employees.” The OSC added that a ruling in TSA’s favor would also discourage potential whistleblowers from reporting wrongdoing in the first place, out of fear that the rules on what is regarded as sensitive information could change in the future.
Should that happen, potential whistleblowers “may refrain from alerting the public to dangers that could have been averted or mitigated,” the OSC argued.
Tom Devine, legal director of the nonprofit Government Accountability Project (GAP), said, “The OSC’s brief confirms that the issue in this case is the Whistleblower Protection Act’s survival as an independent check on agency secrecy rules, not merely justice for Mr. MacLean.”
The OSC and whistleblower advocates are far from alone in siding with Mr. MacLean. The whistleblower also has a groundswell of bipartisan support from lawmakers. In its own Amicus brief submitted Tuesday in support of Mr. MacLean, a group of Democrat and Republican whistleblowers wrote: “The Whistleblower Protection Act supersedes any rules or regulations created by federal agencies.”
Likewise attorneys with the Rutherford Institute filed an amicus brief in support of Mr. MacLean, arguing, as The Examiner explains, “that government agencies should not have the power to unilaterally determine what kind of information federal employees are forbidden from disclosing [because] this would further tip the balance toward agencies, allowing them to exploit their rule-making powers to target legitimate whistle-blowers acting in the interest of public safety.”