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Justices Balk at Regulatory End Run Around the WPA

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NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

Supreme CourtHere’s the problem with telling the justices of the U.S. Supreme Court that they’re wrong: They always get the last word.

And the last word in Department of Homeland Security v. MacLean — based on today’s oral arguments in the case, at least — now seems likely to be a rejection of the Obama Administration’s contention that federal agencies may strip employees of their rights under the Whistleblower Protection Act of 1989 (WPA) simply by issuing regulations that forbid certain types of disclosure.

Ian H. Gershengorn, the U.S. Deputy Solicitor General who argued on behalf of the Department of Homeland Security (DHS), faced withering fire as he argued that the Bush-era DHS was entitled to punish Robert MacLean, a former air marshal who leaked his concerns about airline flight safety, even though the WPA forbids retaliation against whistleblowers — and even though DHS had ultimately agreed that Mr. MacLean’s concerns were legitimate.

Along the way, Mr. Gershengorn told at least four Supreme Court justices that they were wrong in either their facts or their conclusions. The edgy tone started with his response to the very first question, which came from Justice Ruth Bader Ginsburg, and continued through a tense series of exchanges with Justice Stephen Breyer, Justice Antonin Scalia, and Chief Justice John Roberts.

In a half-joking acknowledgement of the tension during his rebuttal time, Mr. Gershengorn spun an off-kilter scenario in which Chief Justice Roberts had decided to ban him from the courtroom. Justice Ginsburg had little patience for the hypothetical, however, and interrupted before he could explain it fully.

“We would never bar you from the courtroom,” said Justice Breyer in a conciliatory tone as the case wound up a minute later.

“He wasn’t talking about you [banning him],” replied Chief Justice Roberts. “Thank you, counsel. The case is submitted.”

And that was the last word, quite literally, until the justices decide the case — a decision that, based on both substance and atmospherics, seems likely to favor Mr. MacLean, whose attorney Neal K. Katyal had a far easier time today.

“The facts are very much in your favor here,” Justice Sonia Sotomayor at one point told Mr. Katyal, who served as Acting Solicitor General for about a year before the 2011 confirmation of Donald Verrilli, Mr. Gershengorn’s current boss.

The facts of the case are straightforward: In 2003 Mr. MacLean complained about a plan to remove Transportation Security Administration (TSA) marshals from certain airline flights despite warnings of a hijacking plot. After getting nowhere via official channels, he engineered the plan’s withdrawal by leaking it to the media.

“That’s Mr. MacLean’s whole position, … that he saved national security,” said Mr. Katyal.

“And he was successful,” said Justice Scalia.

“He was,” replied Mr. Katyal, “and the TSA admitted there was a mistake.”

The marshal’s leak was later uncovered, however, and Mr. MacLean was fired for disclosing “Sensitive Security Information” — a label that the TSA, a branch of DHS, had applied to a series of text messages cancelling air-marshal coverage.

Since then Mr. MacLean has been trying to sue the government for illegal retaliation under the WPA, which forbids federal agencies from punishing their workers for blowing the whistle on suspected illegal or dangerous acts. The WPA contains an exception, however: Employees who make disclosures “specifically prohibited by law” are not protected.

No law explicitly addresses the leaking of information about air-marshal coverage of airline flights. But the Aviation and Transportation Security Act (ATSA) empowers the government to make regulations that bar the disclosure of such information, if it decides that a leak would endanger security — which, in this case, the TSA said it would.

So were Mr. MacLean’s leaks “specifically prohibited” by the ATSA, and therefore permissible grounds for firing, as Mr. Gershengorn asserted for the Obama Administration, raising the specter of thousands of federal employees leaking sensitive information with impunity?

Or may Mr. MacLean seek justice for an illegal dismissal, as Mr. Katyal argued with the support of amicus briefs from a wide range of organizations, including the U.S. Office of Special Counsel, an independent federal agency that helps to enforce the WPA, and a group of members of Congress led by Sen. Chuck Grassley (R-Iowa), a co-author of the WPA?

Today’s arguments revolved mostly around two issues; neither went especially well for the government.

Most basically, there was a question of statutory interpretation: Does the language of the WPA explicitly encompass the TSA regulations that Mr. MacLean violated — or, if it doesn’t, does the ATSA’s authorization of those regulations “specifically prohibit” his disclosures?

Mr. Gershengorn made a coherent but highly legalistic argument for both of these propositions, relying on fairly old cases. But he ultimately ran afoul of the Court’s resident stickler, Justice Scalia, who understood the pitch but thought it beyond the grasp of a legislative branch he has often disparaged.

“Boy, that is subtle,” he said. “You can spin out that argument, but the notion that this is what Congress had in mind … I find that hard to believe.”

Justice Scalia also seemed to catch Mr. Gershengorn off-guard by dismissing any idea that the TSA’s regulations could realistically be considered as part of the ATSA statute. “Let’s not play games,” he said in a harsh tone, causing Mr. Gershengorn to splutter a bit before regaining his composure.

Other justices, meanwhile, questioned whether the ATSA’s authorization of rules against disclosing information “detrimental to the security of transportation” could possibly meet the WPA’s requirement of a “specific” prohibition.

Information detrimental to the security of transportation, said Justice Breyer, “could include everything from a spark plug that is deficient … to a terrorist … So much can be detrimental to the security of an airplane.”

The second main issue was a practical one: If the Court were to support Mr. MacLean and find that federal employees could be shielded by the WPA after breaking TSA regulations (but not the law), did the government still have a way to prohibit truly dangerous disclosures — such as, in a hypothetical posed by Justice Samuel Alito, Mr. MacLean’s leaking of security information not to the U.S. media, but to a foreign entity?

Justice Breyer presented a possible solution: The issuance of an executive order. If the President issued an order to protect sensitive but unclassified information, he asked, would that work?

“If he can do that, then there is no worry,” he asserted, challenging Mr. Gershengorn to disagree.

Mr. Gershengorn grudgingly admitted that Justice Breyer’s approach might be viable — but then spent a lot of time explaining how complicated it might get.

Several other justices quickly jumped on board, however: “What’s so hard?” asked Chief Justice Roberts. “He signs an executive order … and right away the problem we have here of people like Mr. MacLean revealing information is not a problem anymore.”

Justice Scalia chimed in, too, saying that requiring the President to personally sign off on such restrictions would add accountability. “It would make sure that the matter is important enough to occupy the President’s attention and is not so insignificant that an agency that just … doesn’t want any criticism of what it’s doing can pump out these regulations. It would have that salutary effect, wouldn’t it?”

“Your honor, it might have that effect,” Mr. Gershengorn said unhappily.

And so it went. By the time Mr. Katyal stood up, there wasn’t much left for him to do — the justices appeared to have written much of the decision in their minds already.

Mr. Katyal invoked the core problem with letting government agencies write their own rules on whistleblowing, which he called allowing “the fox to guard the hen house”; he leaned heavily on the legislative intent of the WPA; and he answered a number of hypothetical and technical questions.

Unlike Mr. Gershengorn, however, Mr. Katyal spent most of his time agreeing with the justices — often in very brief answers:

“I do.”

“That’s correct.”

“Correct.”

“Exactly.”

“Absolutely.”

Nothing is certain until the opinion is actually handed down, of course. Oral arguments can be misleading. And even if he prevails, Mr. MacLean has merely won permission to seek the WPA’s protection — the merits of his case must yet be decided.

But for him and for his fellow government whistleblowers, that is exactly the goal: To allow justice, not regulations, to have the last word.

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