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Government's Merit Brief Filed in MacLean TSA Whistleblower Case

"Congress could not have intended that a single employee's objection to a TSA decision, no matter how well-intentioned that objection might be, would allow the employee to take matters into his own hands and divulge information that could be exploited to jeopardize the country's transportation infrastructure and the lives and livelihoods of those who depend upon it."

Legal arguments work so much better when you can undergird them with a bit of fear, don't they? Phrases like "another 9/11 incident" really underscore the stakes behind what is basically a case of statutory interpretation using legislative history.

But don't be mistaken: This is an interesting legal case, and not just briefs full of fluff, fear, fire and brimstone. As we've discussed repeatedly, the legal saga of whistleblower and former Air Marshal Robert MacLean boils down to a single phrase: "specifically prohibited by law," an issue which is clouded by a vague statute and mixed statutory history.

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Brief Recap

We've told the tale many times over, so we'll make this short for all of you new readers.

Robert MacLean was an Air Marshal. The TSA, in its infinite wisdom, decided to pull all Air Marshals off of flights out of Las Vegas, despite a credible terrorist threat. MacLean went to his superiors, who gave him unsatisfactory answers. Eventually, out of fear for public safety, he went to the news. His identity was discovered when he tried to blow the whistle on a second issue -- the TSA's dress code.

The TSA, after Congress and the public reacted as one might expect to their decision to pull Air Marshals off of flights, changed their plans. The agency also later fired MacLean, who responded by filing a whistleblower action.

Though the Merit Systems Protection Board ruled in the government's favor, the Federal Circuit reversed, holding that the regulations that made TSA Air Marshal assignments confidential did not fall under the vague "specifically prohibited by law" phrase in the statute, especially since legislative history indicates that a different version of the statute, one that was not adopted, specifically mentioned "regulation."

Government Brief: Regulations Are Law

The government's argument here seems to be that the Federal Circuit relied upon faulty legislative history:

"The court subsequently acknowledged, however, that '[r]egulations promulgated pursuant to Congress's express instructions would qualify as specific legal prohibitions' for purposes of applying the proviso. And it viewed the legislative mandate to promulgate SSI regulations to present 'a very close case,' because the mandate included a direct 'charge' to the agency 'to prescribe regulations pursuant to specific criteria (i.e., only information that would be detrimental to transportation safety).' But the court ultimately concluded that, because the statute 'gives some discretion to the Agency to fashion regulations for prohibiting disclosure,' the statute's criteria were too 'general' to '"specifically prohibit' employee conduct."'

Here's the real twist:

"In reaching that conclusion, the court relied in part on language from a Senate Report, without acknowledging that the report had addressed an unenacted version of Section 2302(b)(8), which had contained the phrase 'prohibited by statute' rather than the phrase 'specifically prohibited by law.'"

In other words, the Federal Circuit held that legislative history indicated that "regulation" was left out on purpose because language including "regulation" was considered and rejected. But the report relied upon by the court was addressing a version that limited its reach to "statute," a version which was also rejected in favor of what is arguably a more general term: "law."

That's a heck of an argument, and frankly, a lot better than they came up with at any point during the Federal Circuit proceedings. We're interested to see how MacLean's counsel responds, and to see how the Supreme Court deals with the issue of whether this entire argument has already been waived -- the Federal Circuit, in its opinion, stated that both sides had already agreed that the phrase "specifically prohibited by law" only applied to statutes. MacLean's counsel, Neal Katya, argued in his opposition to certiorari that this entire issue was waived because it wasn't raised below.

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