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2 Very Different Fed. Cir. Cases on SCOTUS' Docket

The Federal Circuit is weird. It hears patent cases, of course, but it also hears a whole lot of other random federal appeals: Court of Federal Claims appeals, veterans' appeals, trademark appeals, Merit Systems Protection Board appeals, and of course, Little Tucker Act appeals. (Bonus points if you already knew that that was.)

So far this Term, two cases have been granted certiorari by the Supreme Court out of the Federal Circuit, one involving the termination of a Transportation and Safety Administration whistleblower and a second which involves patents -- two very different, yet very interesting cases.

Fed. Cir. Finds Navy Commander's Disability Claims Time-Barred

From 1977 to 1996, Commander Judith Cronin was an active-duty Navy officer. Throughout her service, she had several ailments, ranging from heel spurs to PTSD. In 1996, she was placed on a Temporary Disability Retired List (TRDL), and by 2000, she was permanently retired due to her physical condition. Cronin filed suit to challenge this determination.

Over the course of several appeals, the case went back and forth. The question before the Federal Circuit this time was whether Cronin's non-PTSD claims were time-barred. The Federal Circuit, reversing the Court of Federal Claims' decision, said they were.

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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My colleague William Peacock has covered the case of the discharged Federal Air Marshal and his questionable defense to the Whistleblower Protection Act for some time, and in his last article, he reasonably bet on a cert. denial.

But, the Supreme Court likes to surprise us, and in an unforeseen twist, has granted cert. in what we all thought was (for once), a clear case.

MacLean Files Opposition to Cert. in DHS Whistleblower Case

The Transportation Security Administration learns about a credible hijacking plot. It then pulls air marshals off of certain long-distance flights because of a budget shortfall. This was, in a word, stupid.

Robert MacLean was one of those air marshals. After going to his supervisors and other proper channels, and after he was rebuked with warnings about his career, he anonymously tipped off the press. He was later fired.

We've covered his case extensively, from the Federal Circuit's opinion in his favor, holding that the Whistleblower Protection Act applied to his case, to that court's denial of banc rehearing.

In January, the Department of Homeland Security submitted its petition for certiorari, arguing that applicable security regulations prohibited MacLean's disclosures and that the Federal Circuit's opinion "effectively permits individual federal employees to override the TSA's judgments about the dangers of public disclosure."

What was MacLean's response? Let's take a look at his Brief in Opposition:

Feds Try to Take Air Marshal Whistleblower's Case to SCOTUS

Last year, the Federal Circuit gave us that warm-and-fuzzy feeling. You know the feeling -- it's the one you get at the end of the movie where the good guy wins. That feeling.

Robert MacLean was a federal air marshal. Shortly after learning of a hijacking plot, the Transportation Security Administration (TSA) decided to pull air marshals off of certain flights. If that sounds like an idiotic response to you, you're simpatico with MacLean, who first complained to his supervisors, then leaked the plan to MSNBC.

Long story short: MacLean was fired, even though the information wasn't classified as Sensitive Security Information (SSI) until after he leaked it. Fortunately, as we reported last year, the Federal Circuit came to the rescue, holding that the Whistleblower Protection Act could apply to his case, and later denied an en banc rehearing. The government is now petitioning for Supreme Court review.

The Federal Circuit is in the unique position of hearing very specialized and specific types of cases. If you're an IP attorney, or work with veterans, then it's important to keep a close eye on the cases coming out of this circuit, and 2013 was a pretty interesting year for the Federal Circuit.

Federal Circuit in the News

The infamous government bailout of 2008 still haunts us as the issue of whether Ben Bernanke could be deposed, while still in his position, was raised in a lawsuit from Maurice Greenberg, owner of Starr International, Co., a 12% stake holder in AIG. The last word by the Federal Circuit was that Bernanke may not be deposed while he is Chairman, but considering he steps down in less than a month, we're guessing this is not the last we'll hear on this issue.

The Federal Circuit also made history in September when Judge Hughes was confirmed as the first openly gay judge to sit on a Court of Appeals.

Fed Cir Rejects DHS' Request In TSA Whistleblower Case

Last month, the Federal Circuit rejected a petition from the Justice and Homeland Security departments (DHS). On August 30, the U.S. Appeals Court for the Federal Circuit assessed a petition from the DHS requesting a full court review of a decision supporting former TSA air marshal Robert MacLean and his whistleblower actions back in 2006, CNN reports.

Seven years ago, MacLean had exposed a 2003 DHS decision to sever the inclusion of federal air marshals on long-distance flights, even with the increasing threat of terrorism on passenger flights. Marshal was then fired for leaking this information about air marshal travel cuts.

'Sensitive' Loophole Leaves Thousands of Fed. Workers Unprotected

The government just got a blank check for managing employees with reduced oversight, thanks to the Federal Circuit, and critics are already the worst.

When a federal employee has a grievance, often, their remedy is to appeal the issue to the Merit Systems Protection Board. Common appeals include whistleblower claims and furlough complaints, which are extremely popular in the time of sequestration.

Now, after the Federal Circuit Court of Appeals extended the Supreme Court's Egan v. Navy decision from 1988, holding that the MSPB could not review security clearance determinations, the door to the MSPB will now be closed for a larger group of workers: "noncritical sensitive" positions.

Whistleblowing Air Marshal Robert MacLean's Case Gets New Life

Robert MacLean became a Federal Air Marshal in 2001. In 2003, the Marshals received word of a potential hijacking plot. Unsurprisingly enough, because the Transportation Security Administration (TSA) fails at everything, they botched the response. Because of a budget shortfall, they cancelled all missions on certain flights.

Terror/hijacking alert? Meh.

MacLean discussed his concerns through the proper channels, but nothing was done. So he did what he thought was best: leak the story to the press.