MacLean v. DHS: "Patrolling the Unfriendly Skies: Protecting Whistleblowers Through Expanded Jurisdiction"

Patrolling the Unfriendly Skies:Protecting Whistleblowers ThroughExpanded Jurisdiction

Jon Knight*

Introduction

It is late July 2003.' The main character of this tale is secretive. His job isto quietly fly around the country, patrolling the friendly skies, watching forthose who want to become an airborne threat to national security. He is afederal air marshal. His name is Robert MacLean.

Usually, MacLean received instructions stating where, when, and on whatairline he would fly through text messages on his government cell phone.2

However, one day, MacLean received a message from his superiors, inform-ing him that all missions requiring an overnight stay would be canceled untilAugust 9, 2003.3 This message meant that for over ten days, no air marshalswould be flying on long cross-country flights. MacLean was concerned thatthis gap in coverage would be detrimental to public safety.' He raised thisconcern with his supervisor, but the supervisor declined to investigate the mat-ter.' MacLean then tried to alert the Office of Inspector General, again withno success.6 As a last resort, MacLean disclosed the text message to membersof the press on July 29, 2003.7 He blew the whistle on the Department ofHomeland 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 disturbingreport on the front page of the Washington Post.' Intelligence memos showedthe greatest threat to airline safety since the 9/11 attacks on the World TradeCenter and the Pentagon.9 The Post highlighted the disconnect betweenthis heightened threat level and the confidential information it had receivedindicating that the Federal Air Marshal Service was canceling its patrols onthe most vulnerable flight missions."o A second article included specifics,stating: "An e-mail obtained by The Washington Post from an air marshalofficial directed all local marshals to cancel flight plans on trips that requiredan overnight stays [sic] at hotels because of 'monetary considerations' just aday before the government informed airlines about the hijacking threat.""

This story prompted swift action from Congress. Worried that the DHSwas trying to protect the country "on the cheap," senators like Barbara Boxer(D-CA) and Chuck Schumer (D-NY) demanded an explanation from offi-cials at the DHS.12 Initially, the DHS responded that priorities required cutsin funding.13 However, by one thirty that afternoon, the DHS had changedits mind, saying it was a mistake to cut the funding for the Air MarshalProgram." While MacLean's name was not known to Congress at this time,Senator Boxer expressed public thanks for the air marshal "who came forwardand told the truth about what was going on .. . and [brought] this issue intothe spotlight."

If the story stopped here, MacLean's tale would be one of the whistleblowerprocess at its purest and best. An agency made a bad decision, potentiallythreatening the safety ofAmericans. A federal employee brought that decisionto the attention of the media and Congress. Congress acted, and the agencychanged its mind.

However, knowing the rest of the story dampens one's enthusiasm andtrust in the whistleblower process. The Department of Homeland Securitydiscovered that MacLean was the source of the leak. In September 2005, theTransportation Security Administration ("TSA"), MacLean's direct employer,proposed to remove MacLean on the basis of three charges: (1) Unauthorized

8 Sarah Kehaulani Goo & Susan Schmidt, Memo Warns ofNew Plots to ift/ack jets, WASH.

PosT, July 30, 2003, at Al.9 Id.

10Id.

" Sara Kehaulani Goo, Agency Tackles Visa-Program Threat: Homeland SecurityAlso 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

Media Appearance; (2) Unauthorized Release of Information to the Media;and (3) Unauthorized Disclosure of Sensitive Security Information in viola-tion of 49 C.F.R. § 1520.5(b)(8)(ii)."6 MacLean was removed from publicservice on April 11, 2006. " His act of whistleblowing had cost him his job.

A whistleblower such as MacLean would usually have recourse for suchretaliation through the Office of Special Council, the Merit Systems Protec-tion Board ("MSPB"), and finally the Federal Circuit." In this case, however,because MacLean worked in the national security sector and was involvedwith Sensitive Security Information, he was left without recourse as the victimof what otherwise would be considered a "prohibited personnel practice.""

This is not a new phenomenon. Employees in the national security sec-tor often do not have the ability to seek redress under the WhistleblowerProtection Act for employment disputes arising out of from whistleblowingactivity.20 Leaving these individuals without any meaningful judicial remedybecause of an outdated statutory framework and precedent is unacceptable.The denial of judicial review for adverse personnel actions in the nationalsecurity sector has prompted numerous attempts by Congress to overhaul theWhistleblower Protection Act of 1989 and to create whistleblower rights fornational security employees. Unfortunately, these proposed solutions becomebogged down in debates over how to protect national security interests whilecreating an entirely new judicial or administrative system to handle theseemployment disputes.

This Article will argue that the MSPB and the Federal Circuit, as establishedvenues for federal employment issues, are uniquely situated to adjudicatewhistleblower claims arising out of disclosures of Sensitive Security Informa-tion. While there are numerous procedural safeguards that must be put inplace by the court in order to protect sensitive information, such concernscan be addressed once the MSPB and the Federal Circuit have jurisdiction.

Part I presents the overarching goals of whistleblower protections for gov-ernmental employees, as seen through the history ofwhistleblower protections.It will also briefly outline the existing statutory and agency procedures forresolving employment disputes arising out ofwhistleblowing activity, notingthe 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 Considerations and 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).

283


tional security. Part II dissects MacLean v. Department ofHomeland Security.21This section demonstrates that, absent a change in jurisdiction for the MSPBand the Federal Circuit, individuals like MacLean will continue to be deniedprotection from retaliation for whistleblowing. Part III addresses the futilityof other proposed solutions. It examines why MacLean had no constitutionalprotection 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 theFederal Circuit and the MSPB to include employment disputes arising fromdisclosures of Sensitive Security Information. It will address the competingneeds of protecting national security and providing a judicial forum for theresolution of these types of disputes.

I. A Brief History of Federal Whisdeblower Protections andGoals

A. Goals of Whistleblower Protections

Legal scholars and political theorists have identified several discernablegoals and principles by which effective whistleblower legislation is judged.22

First, the protection should "serve a truth-advancing function."23 Publicpolicy ought to encourage federal employees to share the truth about waste,mismanagement, or fraud committed by their respective agencies.24 The actofwhistleblowing should increase public awareness of environmental, health,and safety problems. 25 Legislative protection from retaliation is integral to thefurtherance of this function as it lends the force of law to the deterrence ofemployment retaliation.26

Second, whistleblower protections serve a democracy-advancing function.27Whistleblowers participate in making government more transparent, thus

21 112 M.S.PR. 4 (2009).22 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 Whistle-

blowing, 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).25 JOHNSON, Supra note 20, at 16-17.26 Bond, supra note 18, at 108.27 Id. at 108.


making government more responsive to the people.28 The public tends to seewhistleblowers in a positive light, rather than as disloyal, because whistleblowingsquares with the traditional American value of individualism. 29 Additionally,Americans are often skeptical of government.30 Raising public awareness ofgovernmental failures in monitoring hazards and maintaining safety standardsis 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 prob-lems, effectiveness should be viewed through the lenses of the truth-advancingand democracy-enhancing functions of effective whistleblower protections.

B. The Civil Service Reform Act and the Whistleblower ProtectionAct

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,

or a substantial and specific danger to public health and safety.3"

The CSRA defined eleven prohibited personnel practices that could result

in merit system violations. 35 However, the only direct right of action created bythe CSRA was for demotions or disciplinary actions greater than a two-week

suspension.6 Coincidentally, by 1983, within five years of the CSRA's pas-

sage, 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, 32-33 (2002).29 JOHNSON, supra note 20, at 14, 16.

3o Id. at 16.

"' Id. at 17.

32 For a full analysis of efficiency considerations for whistleblower protections, see gener-

ally 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)).

* Thomas M. Devine, TheWhistleblowerProtectionActofl989: FoundationfortheModern

Law ofEmployment Dissent, 51 ADMIN. L. REV. 531, 533 (1999).

* Id. at 534.

* Id. at 533.

28 5


problems raised by the whistleblowers, but on discovering the "squealer.""In terms of effective whistleblower protections, the CSRA failed to promoteboth the truth-advancing and democracy-enhancing functions as its effectwas 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 monthsprior to the Challenger disaster, Roger Boisjoly, an engineer with a govern-ment contractor involved in building the shuttle, wrote a memorandum tohis superiors expressing concern over the design of the shuttle fuel tanks.40

Mere hours before the launch, Boisjoly again expressed concern that thelaunch would result in a catastrophe." After the shuttle exploded, Boisjolytestified before Congress about his concerns and almost immediately sufferedemployment retaliation.4 2 An intense congressional response prompted Bois-joly'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 GovernmentWhistleblowers

There are two basic paths for whistleblower claims to reach the MPSB andthe Federal Circuit: an action brought through and by the Office of SpecialCounsel ("OSC") 5 and the Individual Right of Action ("IRA"). 6 The IRAis a back-up option for whistleblowers, available only if the OSC declines topursue a claim.47 The MSPB only hears an IRA after the strict exhaustion ofall administrative law alternatives. 48 A valid whistleblowing claim before the

" JOHNSON, supra note 20, at 92.

" Robert G. Vaughn etal., The histleblowerStatutePreparedforthe Organization ofAmerican

States and the GlobalLegal Revolution Protecting Whistleblowers, 35 GEO. WASH. INT'L L. REv.

857, 857-58 (2003).40 David Culp, Whistleblowers: Corporate Anarchists or Heroes? Towards a Judicial Perspec-

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 Protection Act 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.


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 disclosuremust have been a contributing factor in a prohibited personnel action." ThisArticle focuses on the first two elements: defining a protected disclosure andthe scope of agencies covered.

In order for a disclosure to be protected, the disclosure must be informa-tion that the whistleblower reasonably believed was evidence of a violationof law or of gross mismanagement, waste of funds, abuse of authority, or asubstantial and specific danger to public health and safety.5 2 On its face, thisdefinition serves the both the truth-telling and democracy-serving functionsof whistleblower protections. It encourages employees to expose the truthabout agency decisions, allowing the public to act on better informationthrough the democratic process. Although judicial interpretation has furtherlimited what qualifies as a protected disclosure," the focus of this Article isthe statutory limitations on protected disclosures.

The first limitation on protected disclosures is that the disclosure cannotbe otherwise prohibited by law." To understand this limitation, one mustunderstand the basics of the different classifications for security informationas disclosure of classified information is usually prohibited by law. Classifiedinformation, which is marked "Top Secret," "Confidential," or "Secret," isgoverned by Executive Order 13,526." As such, there are specific rules definingwhat should be classified information, specific prohibitions and limitationson 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, reemploy-

ment, 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).

287

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

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 des-ignation used and defined by the TSA to indicate information that relates to"critical and noncritical infrastructure assets."" Disclosure ofSensitive SecurityInformation to anyone other than those with a need to know is a violationof agency regulation and thus prohibited by law."

The WPA further limits the scope of protection by specifically denyingprotection to all employees of the Federal Bureau of Investigation, the CentralIntelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, and any other agencydetermined by the President to have as its principle function intelligence orcounterintelligence activities." This is significant as MacLean's employers, theDepartment of Homeland Security and the Transportation Security Admin-istration, are new agencies not envisioned by the drafters of the WPA.6 TheWPA's exclusion of any agency determined to have "as its principle functionintelligence or counterintelligence activities"" leaves open the possibility forthe abrogation of whistleblowing rights of hundreds of thousands of DHSand TSA employees."

II. The WPA Is Insufficient to Provide Protection for WhatOtherwise Would Be Impermissible Retaliation as Illustratedby MacLean v. Department of Homeland Security

Although Robert MacLean's actions fulfilled the goals of whistleblowing,the system failed to provide him with protection. He told the truth aboutwhat he believed to be a danger to public health and safety, serving the

56 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 Administra-

tion, 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).

62 See discussion infra Part IV.


truth-advancing function of a whistleblower." His actions provoked a swiftcongressional response, furthering the democracy-enhancing function of awhistleblower." Yet, the DHS and the TSA fired MacLean in April 2006.65Almost one year later, while MacLean's appeal of his termination was beforethe 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 afinal 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 informa-tion in question constituted [Sensitive Security Information]."67 MacLeanhad 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 reviewfrom the MSPB and the Federal Circuit for his firing as a whistleblower.Disclosure of Sensitive Security Information is prohibited by law,69 and theWIPA does not cover disclosures prohibited by law. 0 MacLean's only recoursewas to appeal the Final Order categorizing his disclosure as Sensitive Secu-rity 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 textas Sensitive Security Information was valid.73 Additionally, the Ninth Circuitrejected MacLean's argument that the TSA's post hoc determination of Sensi-

tive Security Information constituted a prohibited "personnel action."7' The

Final Order was not, in and of itself, a personnel action, even though it effec-tively 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." See id.

6 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 Id

6 MacLean, 543 E3d at 1149.

6 49 C.F.R. § 1520.9(a)(2) (2009).

7o 5 U.S.C. § 2302(b)(8)(A) (2006).7 See MacLean, 543 E3d 1145.72 Id. at 1149 (noting jurisdiction to hear final agency orders).

73 Id. at 1150.7 Id. at 1150-51.75 See id.

189


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

determination7 and because the Board only has jurisdiction under the WPAto hear claims arising out of disclosures not specifically prohibited by law.77

In MacLean's case, a government agency was able to prevent a whistleblowerfrom having his claim heard by the MSPB. This was simply accomplished bywriting a two-page letter almost one year after the employee was fired, statingthat in the opinion of one agency officer the disclosure made was SensitiveSecurity Information.78 This should cause alarm for three reasons. First, itshows the ease with which an agency was able to avoid review of its actionsby the MSPB. Second, the process by which the TSA designates, monitors,and controls Sensitive Security Information lacks transparency or operatingguidelines7 thus increasing the need for whistleblowers to serve the truth-advancing function.o Third, distilling the facts of MacLean's situation intoits basic elements reveals a discrepancy in whistleblowers' rights in the federalgovernment. MacLean disclosed a management decision, that he reasonablybelieved was gross mismanagement and a danger to public safety, and thatdisclosure resulted in his termination."' Yet, the post hoc determination bythe TSA that his disclosure was Sensitive Security Information eliminatedhis ability to receive redress.

These facts indicate that the whistleblower protection process of the WPAis not functioning properly, at least with respect to the disclosure of Sensi-tive Security Information. Individuals in MacLean's situation will see thatno process can protect them when they share a necessary truth with theAmerican people, chilling the disclosure of information that might save lives.Such fear defeats the truth-advancing function of effective whistleblowerprotections.82 Poor transparency in the process for the designation of Sensi-tive Security Information lends itself to the very type of governmental abusethat whistleblowers are supposed to expose. Additionally, these facts defeatthe democracy-enhancing function of effective whistleblower protections asthe public has less information with which to make democratic choices."These concerns illustrate the need for change in the structure ofwhistleblowerprotections 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.


III. Incomplete or Ineffective Solutions: Why MacLean HadNo Other Viable Recourse

Permeating the need to expand the jurisdiction of the Federal Circuit andthe MSPB to cover whistleblower claims relating to the disclosure of Sensi-tive Security Information is the ineffectual nature of other possible solutions.Existing and proposed solutions available to someone in MacLean's situationwould not provide the level of protection offered by expanding the jurisdic-tion of the MSPB and the Federal Circuit.

A. The First Amendment Likely Provides No Protection forSensitive Security Information Whistleblowers

In Garcetti v. Ceballos,8 4 the Supreme Court held that the First Amendmentdid not protect a whistleblowing federal employee from retaliation where theemployee's disclosures were made as a part of his official responsibilities."When Ceballos, a deputy district attorney in Los Angeles, disclosed to hissuperiors that an affidavit contained factual errors, he was denied promotionand transferred."6 The Supreme Court found that when disclosures are madepursuant to official responsibilities, a federal employee is speaking as an in-strument of the government, not as a citizen.87 There can be no comparisonto citizen speech protected by the First Amendment."

In light of Garcetti, most attempts to litigate whistleblower claims underthe First Amendment would not further the truth-telling function of whistle-blower protections. On the one hand, an individual in MacLean's situationwould not be forced to show that she reasonably believed her disclosure to beevidence of fraud or an issue of public safety, i.e., that the disclosure made wasreasonably true. Rather, judicial analysis would focus on defining the scope ofan employee's "job duties," instead of on an initial showing of truthfulness."On the other hand, much of what would be considered a protected disclo-sure under the WPA, for example a memo written to a supervisor discussingthe discovery of fraud in a government contract, would not be protected bythe 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-Garcetti courts will

likely be on the true scope of a government employee's job duties).

291


responsibilities. Moreover, there is concern that Garcetti is being expandedby lower courts to include all speech that an employee is able to make onlyby virtue of governmental employment.o The First Amendment cannot be areliable source of protection for whistleblowers like MacLean.

B. The Procedure of the Intelligence Community WhisdeblowerProtection Act is Insufficient

At first blush, the Intelligence Community Whistleblower Protection Actof 1998 ("ICWPA") could cover MacLean and other whistleblowers whomight disclose Sensitive Security Information.9 Unlike the WPA, the IC-WPA covers any employee or contractor in the intelligence community andprovides procedures for making disclosures to Congress. A whistleblowermust first inform her agency's inspector general of the potential need fordisclosure and may contact an intelligence committee member in Congressonly if the agency director has been provided with copy of the disclosure,notice of the intent to contact Congress, and the whistleblower obtains andfollows the director's instructions on how to contact Congress in accordancewith appropriate security practices. 93

However, this legislation has several serious shortcomings, and it is highlyunlikely that MacLean would have fallen under its protection. First, theprocedures for lawful disclosure are premised on a perverse incentive. Thestatute requires oversight and permission from the very agency whose failureshave prompted the whistleblower to act." Effective whistleblowing cannotoperate under the supervision of the offending agency. The procedures in theICWPA amount to asking a fox to watch the henhouse.

Second, the ICWPA would not have protected MacLean as a matter oftimeliness. Even if disclosures were allowed by an agency director under theICWPA, the time-frame for action would have precluded MacLeans disclosurefrom being effective. By law, the ICWPA process could take at least twenty-one days between when an employee makes a disclosure to the inspectorgeneral 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.

92 Id. § 702, 112 Stat. at 2414-16.

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 Protection Act 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.


time during which the overnight stays were cancelled 96-MacLean's disclosurewould have been of no use. Since the overnight stays for the air marshalswere only canceled for a short period of time, the ability for the disclosure toprotect public safety was temporally limited. If disclosure was made after tendays, the potentially dangerous security conditions could not possibly havebeen remedied. Hindsight would be the only way to evaluate these lapses in

security, and if a tragedy occurred during that period, subsequent disclosurewould be immaterial.

C. The Obama Administration's Proposal Faces PoliticalDifficulties and Over-Reaches in Its Solution

A central campaign promise of then-presidential candidate Barack Obamawas to increase protection for whistleblowers. His "Plan to Reform the Greedand 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 dur-

ing 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

whistleblower claims and whistleblowers have full access to courts and due process.97

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

The legislation was designed to enhance whistleblower protections for federalemployees and contractors, but the proposed solutions were rather extreme,including stripping the Federal Circuit of jurisdiction to review MSPB deci-

sions 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.opencon-

gress.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 Administra-

tion proposal. A similar bill is also pending in the Senate. See S. 372, 111th Cong. (2009).

" See H.R. 1507 § 9(a)-(b).

2,93


H.R. 1507, the Administration indicated that the congressionally proposedchanges to whistleblower protection were too broad and proposed its ownsolution that would directly affect future disclosures of the type made byMacLean.' 0 The Administration stated that for any whistleblowing activitythat implicates national security concerns (such as the disclosure of SensitiveSecurity Information), there should be an extra-agency board of employmentappeals."o' This Board would be comprised of presidentially-appointed offi-cials from various agencies to make sure that no one particular agency couldhide its own wrongdoing.'02 This entity would provide some level of reviewfor actions by an agency head with regards to an employee's concerns, and itwould be able to overrule the agency head on these issues. 03 More importantly,individual employees would be allowed to inform Congress that they hadstarted this process. This would allow Congress to be aware that a concern hasbeen raised, even if it currently did not have the details of the disclosure.o4

While this proposal would provide greater protection for federal employeeslike MacLean, it creates an inherent conflict of interest. This plan does notprovide any level of judicial review for a final decision of the extra-agencyboard of appeals. Though it is better than the blatant fox/henhouse scenarioof the ICWPA, it does not provide true openness and transparency. Wrong-doing at the agency level could still be hidden at the executive branch level.Administrative adjudication of employment retaliation claims behind closeddoors, without any check from the judicial branch, fails to serve the func-tions of whistleblower protections. It is a rudimentary principle of Americangovernmental structure that the government must be constrained in order toprevent injustice.' In the famous essay, Federalist No. 51, James Madisoncautioned the American people against allowing the government to act un-checked. "Ambition must be made to counteract ambition," Madison wrote.'0 6

An executive branch determination regarding employment retaliation againsta whistleblower, in the absence of any judicial review, remains unchecked andwould still leave individuals like MacLean without any meaningful recourse.

Congress has previously expressed concern about the conflict betweenwhistleblower rights and classification procedures. In 1988, the House Com-

100 See Whistleblower Protection Enhancement Act 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 Id.03 Id04 Id.

0I See THE FEDERALIST No. 51 (James Madison).106 Id.


mittee on Government Operations issued a report on the controversial use ofnondisclosure contracts for federal employees and federal contractor employeeshaving access to classified national security information.'o The Committeereport foreshadowed MacLean's situation and counseled against allowing expost labeling of "classifiable" material.'o The report states:

The Administration's most recent attempt to define "classifiable" holds employees li-

able 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 retalia-

tion), 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 requestswere made and multiple orders were issued by the MSPB administrative

judge handling the case, but the TSA repeatedly stonewalled and refusedto 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 ProvideProtection

Judicial review should be expanded to protect whistleblowers like Ma-

cLean. 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-0752-

06-0611-1-1 (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.

295


should be statutorily expanded to cover whistleblower claims arising out ofdisclosures of Sensitive Security Information as well as disclosures made byTSA employees generally.

A. The First Step: Changing the Scope of Protected Disclosures

From a practical standpoint, the first step must be legislative action. Asnoted by the MSPB in MacLean's case, the Board, and thus the Federal Cir-cuit, only have jurisdiction over whistleblower claims arising out of disclosuresnot specifically prohibited by law."' Currently, regulations governing the useor dissemination of Sensitive Security Information state that it is improperto disclose or otherwise provide access to Sensitive Security Information toindividuals who are not on a need-to-know basis.112 Thus, disclosure of Sensi-tive Security Information by MacLean or other similarly situated individualsplaces them outside the protection of the WPA. "3

Changing the definition of protected disclosure for the purposes ofthe WPAwill address this problem. While it would be imprudent to remove from theWPA all requirements that the disclosure not be prohibited by law, it couldeasily be amended to create an exception for material alleged or determinedto 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 prohibitedby law" does not include disclosures arising from a disclosure of SensitiveSecurity Information. The MSPB and Federal Circuit would not be allowedto question a designation of Sensitive Security Information, but the MSPBand the Federal Circuit would not be precluded from hearing a whistleblowerclaim just because the disclosure is determined by the retaliating agency tobe Sensitive Security Information. The narrow scope of this solution helps tobalance the competing interests of whistleblower protections and executiveprerogative in national security matters."4

B. The Transportation Security Administration Must Be ExplicitlyIncluded in the Scope of the WPA

Another factor that has caused the failure of the WPA is the statute's age. Itwas passed in 1989."1 The TSA was created in November 2001 as a responseto 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.


between the passage of the WPA and the creation of the TSA is problematicbecause of the manner in which WPA defines covered agencies. The WPAdoes not cover any agency or unit of an agency determined by the Presidentto have as its principle function intelligence or counterintelligence activities."

The WPA did not seem to contemplate the creation of hybrid agencies likethe TSA. While the TSA does play a role in the intelligence community asevidenced through its offices of intelligence, transportation threat assessment,and federal air marshal services,"' it also plays a critical role in the inspec-tion of airport services and oversees hundreds of millions of federal contractdollars."9 There is a great likelihood that disclosure by whistleblowers fromthe TSA will relate solely to fraud, gross mismanagement, or a substantial,specific danger to public safety rather than to issues solely of national securityor intelligence. Also, because of the increasing role the TSA plays in the dailylives of Americans, whistleblowing from this agency in particular ought to beencouraged as promoting a democratic function.

The WPA can easily be amended to accommodate this. All that wouldbe necessary is a clause specifying that the TSA is a covered agency for thepurposes of 5 U.S.C. § 2302(a)(2)(C). Such a clear legislative statementwould render moot any need for statutory interpretation, and thus avoid thepossibility that future individuals in MacLean's situation would be deniedprotection under the WPA.

C. These Solutions Help Achieve a Balance Between theCompeting Needs of Governmental Accountability and NationalSecurity

The proposed solution of expanding the whistleblowing jurisdiction of theFederal Circuit and the MSPB to include disclosures of Sensitive Security In-formation hits at the nexus between governmental accountability and nationalsecurity. Both are necessary interests. However, both appear to be conflictinginterests. This solution attempts a balance between the two.

On the one hand, necessary goals are served bywhistleblower protections. Ata theoretical level, these goals include the exposure of truth about dangerous,fraudulent, or irresponsible actions of government agencies.' 20 However, theexposure 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.

197


valuable for their role in spurring a democratic response to keep the govern-ment in check. While a free press and free speech can assist in this process,these are not sufficient for optimum transparency.12 ' Government officials,such as MacLean, might be the only possible sources for information on is-sues of public safety, leaving the public without an effective substitute.'22 Thisartificial restriction of information negatively impacts the proper functioningof a democratic marketplace through decreased voter participation and fewercompeting ideas.'23

Conversely, the government needs to maintain a certain level of secrecy inorder to protect citizens from the attacks of enemies. These national securityconsiderations counsel against the disclosure of classified material or informa-tion that could be used by terrorists to threaten the public safety. Expandingthe scope of whistleblower protections would make it easier for journalistsand government employees to become "a law unto themselves."'24 It wouldeffectively replace the power of the presidency to decide what should beclassified material with the discretion of journalists and perhaps disgruntledintelligence employees to decide whether information should be released forpublic consumption. Democracy would suffer if whistleblower protectionswere extended too far because it would place the decision to release potentiallydamaging information into the hands of individuals who cannot be held ac-countable through the electoral process.

Allowing the MSPB and the Federal Circuit to hear whistleblower caseseven when they involve the disclosure of Sensitive Security Informationhelps to ensure that an already suspect classification system is not abused tobecome a vehicle for an agency or managers to retaliate against employees. Aspreviously discussed, Sensitive Security Information is designated in a verydifferent manner than other classified information, which is marked "TopSecret," "Confidential," or "Secret.""2

While there are penalties for the unauthorized disclosure of Sensitive Se-curity Information, as painfully seen through the case of MacLean, there isessentially no oversight for its use. In 2005, the Government AccountabilityOffice assessed the TSA's management of Sensitive Security Information.126It found that the TSA has no written policies and procedures beyond its

121 See Stiglitz, supra note 28, at 31.122 Id123 See id. at 33.124 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.

PROTECTING WI-USTLEBLOWERS THROUGH EXPANDED JURISDICTION

Sensitive Security Information regulations for determining what constitutesSensitive Security Information; no policies and procedures specifying clearresponsibilities for officials who can designate Sensitive Security Information;inadequate internal controls to provide reasonable assurance that its SensitiveSecurity Information designation process is being consistently applied acrossthe agency; and no policies or procedures to train employees on how infor-mation is to be identified and evaluated as Sensitive Security Information.127

There is the additional pitfall of overclassification.'" The ability to classifyinformation is a powerful tool of the modern executive, intrinsically plaguedwith the potential of broad discretion and abuse.129 Some critics argue thatincreased protection for national security whistleblowers would be beneficialbecause of the occurrence of "unlawful secrets" in the past several years.'oIncreased protection for both the whistleblowers and for the recipients ofsuch information, like the media, they argue, would be beneficial becauseinformation-sharing and opinion-sharing is at the core of the First Amend-ment. "The right to express viewpoints would mean little if government couldstifle 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 nooversight. 3 2 The fact that the TSA has no official procedure governing whocan or cannot determine that certain information was Sensitive SecurityInformation should alone raise a red flag concerning MacLean's case. TheSensitive Security Information determination in his case was made by asingle individual,"' without an opportunity for MacLean to comment oroffer countervailing evidence.'34

Finally, giving the MSPB and the Federal Circuit jurisdiction over whistle-blowing claims arising out of disclosures of Sensitive Security Informationprotects separation of powers. In the realm of national security issues, "theExecutive's constitutional authority is at its broadest" and the role ofthe judiciaryis limited.'35 This solution respects the need for some level of governmentalsecrecy, particularly executive-level classification determined by set policieswith sufficient oversight, while providing federal employees with an avenue

127 Id.128 See Heidi Kitrosser, Classified Information Leaks and Free Speech, 2008 U. ILL. L. REV.

881, 884.129 See id.

13 Vladeck, supra note 85, at 1531-32.

'' Kitrosser, supra note 128, at 906-07.132 See RELYEA, supra note 55, at 25.133 See TSA Final Order, supra note 66.1 MacLeanv. Dep't ofHomeland Sec., 543 E3d 1145, 1149 (9th Cir. 2008) (per curiam).

13 El-Masri v. United States, 479 E3d 296, 303 (4th Cir. 2007).

299


to protest retaliation. As noted above, the Federal Circuit and the MSPBwould not be allowed to upset a Sensitive Security Information designation."

D. This Solution is Pragmatic and Easier to Attain than OtherAlternatives

A change in jurisdiction requires congressional action, and politics is theart of the possible. This solution is more readily attainable than one of thetheoretical alternatives: an entirely new court system for national securitycases. During years following the 9/11 attacks, numerous scholars havedebated the need for a new Article III court dedicated to national securityissues, along with the merits and scope of such a court.' While the exactdetails of the system would be "up for grabs," its bones would be "[a] systemstaffed by federal judges, with experienced counsel on both sides, in whichthe government would have an ability to temporarily detain a dangerousindividual."' However, the debate surrounding such a court is focused on thebroader and more difficult issue of whether a separate judicial system could"provide an effective means for detention, treatment, and trial of suspectedterrorists."'19 There appears to be no discussion of the integration of nationalsecurity whistleblower cases into the framework for a new Article III court.Relying on a non-existent court system to protect the rights of future nationalsecurity whistleblowers is ineffective. Additionally, a separate Article III courtdesigned specifically for national security concerns would simply enhance

jurisdictional confusion over whistleblower issues. It would either create thesame result as seen in MacLean (i.e., an agency determination of disclosure ofSensitive 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 thatalready has the expertise to handle agency employment disputes.

'3 See discussion supra Part IV.A.

" Compare Kevin E. Lunday & Harvey Rishikof, Due Process Is a Strategic Choice: Legiti-

macy and the Establishment ofan Article I National Security Court, 39 CAL. W INT'L L.J. 87(2008), andGlenn Sulmasy, The Needfora National Security Court System, 23 ST. JOHN'S J. LE-

GAL COMMENT. 1007 (2009), with Stephen I. Vladeck, The Case Against National Security

Courts, 45 WILLAMETTE L. REV. 505 (2009).'M Neal Katyal, A National Security 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.


E. This Solution Fosters the Equalization of Federal EmploymentRights at the Intra- and Extra-agency Levels

Giving the Federal Circuit and the MSPB jurisdiction over whistleblowingactions arising out of the disclosure of Sensitive Security Information wouldequalize employment rights for federal employees in two ways. This is anadded benefit, above and beyond the basic goals of whistleblower protec-tions. First, an employee in a different agency who makes a disclosure undera similar fact pattern is able to appeal a prohibited personnel action to theMSPB. As previously mentioned, Sensitive Security Information is a labelused only by the TSA and the limitations on disclosure of Sensitive SecurityInformation are unique to the TSA.uo Thus a federal employee in anotheragency disclosing substantively similar information has the right to an appealthat an employee in MacLean's situation does not.

Second, even other employees within the TSA might have the right to ap-peal a prohibited personnel action, unlike employees in MacLeans situation.For example, suppose that the TSA awards a contract for providing securityservices at Reagan National Airport, and that a procurement officer disclosesthe fact that a manager instructed him to accept a bid that was not the low-est bid, and subsequently suffers a prohibited personnel action. It wouldamount to a (1) disclosure of a management decision; (2) that reasonablyevidences gross mismanagement or fraud; and (3) that results in a prohibitedpersonnel action."' This scenario could at least be heard by the MSPB andthe Federal Circuit, granting employment rights to an employee in the sameagency as MacLean that he does not have. The only differentiating factor isthat MacLean disclosed what was after the fact determined to be SensitiveSecurity Information. Expanding the jurisdiction of the Federal Circuit andthe MSPB as outlined here would remove this discrepancy in whistleblowerrights for federal government employees.

E This Solution Promotes Judicial Efficiency While MinimizingInstitutional Costs

Any change to government or judicial procedure raises concerns of insti-tutional cost and efficiency. Expanding the jurisdiction of the Federal Circuit

and the MSPB is an efficient solution for several reasons. First, this courtalready exists. While this may seem pedantic, simply modifying the jurisdic-tion 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 newjudges, new buildings, and new staff. Additionally, because the Court and the

1o See supra notes 57-58 and accompanying text.

"' See discussion supra Part I.C (describing basic elements of a claim under the WPA).

3OI


MSPB already exist, fewer legislative resources will be used hammering outthe details of a new court. As illustrated above in the discussion of proposednational security courts,14 the creation of a new court would be dominatedby much weightier issues like how to balance individual freedoms and hu-man rights with the need to protect national security. While this solution isnot immune to debate, it would likely be on a much smaller scale than thedebate surrounding the creation of national security courts.

Another efficiency benefit would be the timing of a change to the judicialsystem. Former Georgetown University Law School Professor and currentActing Solicitor General Neal Katyal wrote that a change of the court systemshould not be accomplished during a presidential election cycle."I While hewas discussing this in relation to the creation of a national security court,his argument can be applied to any change in the judicial system. Modifica-tion of the judicial system should be done delicately, appreciating the risksinvolved."' He states that the worst time to consider changes is during anelection cycle because "rush[ing] to judgment produces slogans withouta sustainable product.""' Thus, the timing for changing the jurisdictionof the Federal Circuit is ripe. Two years have passed since the most recentpresidential election, allowing Congress and the Administration to face theproblem of national security whistleblowers without the distraction of loftycampaign slogans and empty rhetoric that would derail the issue. Workingon the change now would create a well-reasoned product and a thoughtfulchange to jurisdiction.

Finally, expanding the jurisdiction of the Federal Circuit and the MSPBis efficient because there would be no need to establish new precedent andprocedures. These two judicial bodies have been hearing issues relating tofederal employees for decades. They have institutional experience in whistle-blower cases that would be difficult initially to match through the creation ofanother court. However, critics state that the Federal Circuit has demonstrateda hesitance to rule in favor of whistleblower employees in WPA retaliationcases."' Supposedly, since 1994, the Federal Circuit has ruled in favor of fed-eral employee whistleblowers in only two out of 204 cases.' 7 This outcome isdue, in part, to the Federal Circuit's restrictive interpretation of the WPA."'

14 See discussion supra Part IV.D.

" Katyal, supra note 138.1" Id.'45 Id146 Bond, supra note 18, at 112..47 Id148 Id

PROTECTING WHISTLEBLOWERs THROUGH EXPANDED JURISDICTION

While it is true that sometimes the MSPB and Federal Circuit's interpretationof the WPA is incongruous,' the situation is not as dire as critics suggest. Avery basic search of cases from the Federal Circuit and MSPB reveals at leastfour cases within the last two years that have upheld the rights and protectionsof federal whistleblowers.' Furthermore, looking only at cases decided bythe Federal Circuit will not provide an accurate reflection of the effectivenessof precedent and the WPA, as this count will not include cases decided infavor of the whistleblower by the Office of Special Counsel.'' Moreover, itwill not include all the times the Office of Personnel Management choosesnot to appeal a decision to the Federal Circuit,'52 and it does not take intoaccount the discretion the Federal Circuit has in granting appellate judicialreview when sought by the government.'"15us, concerns that Federal Circuit

jurisprudence does not sufficiently protect whistleblowers should not be ahindrance to the expansion of its jurisdiction as proposed here.

Conclusion

MacLean's tale illustrates the need to expand the whistleblower jurisdic-tion of the MSPB and the Federal Circuit to include disclosures of SensitiveSecurity Information. Whistleblower protections cannot advance truth orpromote democracy if they are predicated on unequal employment rightsfor federal workers or subject to abrogation through the acts of managersand bureaucrats. The limitations of the WPA have been outgrown by therealities 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).15 See 5 U.S.C. § 121 4 (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.

3O3


Information. Due to Garcetti, the Constitution cannot provide relief forcitizens in MacLean's situation. Other proposals, whether existing statuteslike the ICWPA or political proposals such as the Obama administration'splan, not only fail to address the core of the problem but lack the necessarypragmatic considerations. Changing the jurisdiction of the Federal Circuitto include whistleblower claims arising out of the disclosure of SensitiveSecurity Information is judicially efficient, will help balance the competingneeds of national security and whistleblower protections, and is pragmaticallyachievable. While there is still much to be discussed and researched, such asbest practices and procedures for dealing with Sensitive Security Informationby the MSPB and the Federal Circuit, these issues can be worked out oncethe jurisdictional change is made. As noted above, effective whistleblowerprotections serve to protect democracy as the former necessarily informs andeducates the choices of the latter. Now the tables have turned. Legislative ac-tion by Congress is the essential first step in protecting the whistleblowers.This step must be taken now.

Documents

MacLean v. DHS: "Patrolling the Unfriendly Skies: Protecting Whistleblowers Through Expanded Jurisdiction"