homeland security v. maclean - scotus: grassley congressional amicus in maclean's support

7/27/2019 Homeland Security v. MacLean - SCOTUS: Grassley congressional amicus in MacLean's support

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No. 13-894

WILSON-EPES PRINTINGCO.,INC. (202)789-0096 WASHINGTON,D.C.20002

IN THE

Supreme Court of the United States

DEPARTMENT OF HOMELAND SECURITY,

Petitioner,

v.

ROBERT J.MACLEAN,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

BRIEF OF MEMBERS OF CONGRESS AS

AMICI CURIAEIN SUPPORT OF RESPONDENT

ROBERT K.KRY

Counsel of RecordLUCAS M.WALKERMOLOLAMKEN LLP

The Watergate, Suite 660600 New Hampshire Ave., NW

Washington, D.C. 20037

(202) [email protected]

Counsel for Amici Curiae


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(i)

TABLE OF CONTENTS

Page

Interest ofAmici Curiae............................................ 1

Summary of Argument ............................................... 3

Argument ...................................................................... 7

I. Disclosure Is Specifically Prohibited byLaw Only If It Is Prohibited by Statute..... 9

A. Congress Has ConsistentlyUnderstood 2302(b)(8)(A) To

Require That Disclosure BeProhibited by Statute ............................... 10

1. Civil Service Reform Act of 1978 ...... 10

2. Whistleblower Protection Act of1989 ........................................................ 13

3. The 1994 Amendments ....................... 17

4. Whistleblower ProtectionEnhancement Act of 2012 .................. 18

B. Congress Has Relied onAdministrative and Judicial

Decisions Requiring ThatDisclosure Be Prohibited by Statute ...... 20

C. Section 114(r)(1) Does NotSpecifically Prohibit Disclosure ofthe Information Here................................ 22

II.Allowing Agencies To Create Exceptionsto Whistleblower Protections WouldUndermine Congresss Oversight Role ........ 23

A.Agency Rules and RegulationsCreate Dozens of Categories ofUnclassified Information That AreOften Poorly Defined ................................ 24


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TABLE OF CONTENTSContinuedPage

B.Agency-Created Exceptions WouldDeter Whistleblowing and ImpairCongressional Oversight .......................... 27

C. The Risk of Agency Overreach IsApparent ..................................................... 31

Conclusion ..................................................................... 35


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TABLE OF AUTHORITIESPage(s)

CASES

Aliv.Fed. Bureau of Prisons,552 U.S. 214 (2008) ............................................. 14

Bushv.Lucas, 462 U.S. 367 (1983) ...................... 32

Chrysler Corp.v.Brown, 441 U.S. 281(1979) .................................................................... 27

Commodity Futures Trading Commnv.

Schor, 478 U.S. 833 (1986) ................................ 21Kentv. Gen. Servs. Admin.,

56 M.S.P.R. 536 (1993) .................................. 20, 21

Lorillardv.Pons, 434 U.S. 575 (1978) ................. 22

MacLeanv.Dept of Homeland Sec.:

112 M.S.P.R. 4 (2009) ...................................... 20116 M.S.P.R. 562 (2011) .................................. 21

714 F.3d 1301 (Fed. Cir. 2013) ...................... 21

Microsoft Corp.v. i4i Ltd. Pship,131 S. Ct. 2238 (2011) ......................................... 21

Mt. Healthy City Sch. Dist. Bd. of Educ.v.Doyle, 429 U.S. 274 (1977) ............................ 15

Russellov. United States, 464 U.S. 16(1983) .................................................................... 13

STATUTES

5 U.S.C. 1216 ......................................................... 16

5 U.S.C. 1216(a) .................................................... 16

5 U.S.C. 1216(a)(4) ................................................ 16

5 U.S.C. 2302 ......................................................... 14

5 U.S.C. 2302(b) .................................................... 28

5 U.S.C. 2302(b)(1) ............................................... 19


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TABLE OF AUTHORITIESContinuedPage(s)

5 U.S.C. 2302(b)(8) .................................... 14, 19, 20

5 U.S.C. 2302(b)(8)(A) .................................. passim

5 U.S.C. 2302(b)(8)(A)(i) ...................................... 8

5 U.S.C. 2302(b)(8)(A)(ii) ..................................... 8

5 U.S.C. 2302(b)(9) ............................................... 19

5 U.S.C. 2302(b)(13) ............................................. 33

5 U.S.C. 2303 ......................................................... 19

5 U.S.C. 2304(a)(1) ................................................ 19

5 U.S.C. 2304(a)(2) ................................................ 19

5 U.S.C. 2304(a)(3) ................................................ 19

6 U.S.C. 133(c)....................................................... 23

49 U.S.C. 114(r) .................................................... 22

49 U.S.C. 114(r)(1) ........................................ 5, 22, 23

49 U.S.C. 114(r)(1)(C) .......................................... 22

49 U.S.C. 114(r)(2) ................................................ 28

49 U.S.C. 40119(b) ................................................ 22

Civil Service Reform Act of 1978, Pub. L.No. 95-454, 92 Stat. 1111 ............................. passim

3(1), 92 Stat. 1112(5 U.S.C. 1101 note) ............................. 10

3(2), 92 Stat. 1112(5 U.S.C. 1101 note) ............................. 10

101(a), 92 Stat. 1116(codified as amended at5 U.S.C. 2302(b)(8)(A)) ........................ 10

101(a), 92 Stat. 1117

(5 U.S.C. 2303) ...................................... 33


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Freedom of Information Act of 1966,Pub. L. No. 89-487, 80 Stat. 250(codified as amended at 5 U.S.C. 552) .......... 16

Hatch Act of 1939, Pub. L. No. 89-554,80 Stat. 524 (codified as amended at5 U.S.C. 1501-1508) ....................................... 16

Hatch Act Reform Amendments of 1993,Pub. L. No. 103-94, 107 Stat. 1001

(codified as amended at5 U.S.C. 7321-7326) ....................................... 16

Legislation of July 30, 1778, reprinted inGovt Printing Office,Journals of theContinental Congress, 1774-1789(W.C. Ford et al. eds., 1908) ............................. 7

Lloyd-LaFollette Act, ch. 389, 6, 37 Stat.539, 555 (1912) (codified as amended at5 U.S.C. 7211) .............................................. 31, 32

Pub. L. No. 103-424, 108 Stat. 4361(1994) .......................................................... 4, 17, 20

3(b), 108 Stat. 4362(5 U.S.C. 1212(g)(1)) ............................ 17

4(b), 108 Stat. 4363(5 U.S.C. 1221(e)(1)) ............................ 17

Whistleblower Protection Act of 1989,Pub. L. No. 101-12, 103 Stat. 16 ................. passim

3(a)(13), 103 Stat. 19(5 U.S.C. 1212(a)(3)) ............................ 16

3(a)(13), 103 Stat. 19(5 U.S.C. 1212(a)(4)) ............................ 16

3(a)(13), 103 Stat. 19(5 U.S.C. 1212(a)(5)) ............................ 16


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3(a)(13), 103 Stat. 26(5 U.S.C. 1214(b)(4)(B)(i)) ................... 14

3(a)(13), 103 Stat. 26(5 U.S.C. 1214(b)(4)(B)(ii)) .................. 15

3(a)(13), 103 Stat. 30(5 U.S.C. 1221(e)(1)) ............................ 14

3(a)(13), 103 Stat. 30(5 U.S.C. 1221(e)(2)) ............................ 15

4(a)(3), 103 Stat. 32(5 U.S.C. 2302(b)(8)(A)) ...................... 14

4(a)(5), 103 Stat. 32(5 U.S.C. 2302(b)(8)(B)) ...................... 14

Whistleblower Protection EnhancementAct of 2012, Pub. L. No. 112-199,126 Stat. 1465 ............................................ 2, 4, 18, 19

101(a), 126 Stat. 1465(5 U.S.C. 2302(b)(8)(A)(i)) ................... 19

101(a), 126 Stat. 1465(5 U.S.C. 2302(b)(8)(B)(i)) ................... 19

101(b)(2)(C), 126 Stat. 1466(5 U.S.C. 2302(f)).................................. 19

109(a)(2), 126 Stat. 1470(5 U.S.C. 2304(a)(1)) ............................ 19

LEGISLATIVE MATERIALS

H.R. Conf. Rep. No. 95-1717 (1978) ........... 4, 12, 13

H.R. Rep. No. 95-1403 (1978) .......................... 11, 12

H.R. Rep. No. 99-859 (1986) .................................. 14

H.R. Rep. No. 100-274 (1987) ................................ 14

H.R. Rep. No. 103-769 (1994) .......................... 17, 18


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House Comm. on Oversight & GovtReform,Pseudo-Classification of

Executive Branch Documents:Problems with the TransportationSecurity Administrations Use of theSensitive Security Information (SSI)Designation (July 24, 2014) ................... 25, 34, 35

S. Rep. No. 95-969 (1978) ............................... passim

S. Rep. No. 103-358 (1994) ..................................... 17S. Rep. No. 107-349 (2002) ..................................... 17

S. Rep. No. 112-155 (2012) .......................... 18, 19, 33

135 Cong. Rec. 4509 (1989) .................................... 15

135 Cong. Rec. 4512 (1989) ................................. 13, 14

135 Cong. Rec. 4513 (1989) .................................... 15

135 Cong. Rec. 4514 (1989) .................................... 14

135 Cong. Rec. 4516 (1989) .................................... 13

152 Cong. Rec. S1780 (Mar. 6, 2006) ................. 7, 8

158 Cong. Rec. E1664 (Sept. 28, 2012) .............. 18, 19

160 Cong. Rec. S2366 (Apr. 10, 2014) ................ 8, 32

160 Cong. Rec. S2367 (Apr. 10, 2014) ................... 31

Activities of the Federal Bureau ofInvestigation: Hearing Before theSubcomm. on Crime of the H. Comm.on the Judiciary, 105th Cong.(May 13, 1997) ..................................................... 33

Joint Staff Report, House Comm. onOversight and Govt Reform & Senate

Comm. on the Judiciary,Fast andFurious: The Anatomy of a FailedOperation (July 31, 2012) .................................. 30


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EXECUTIVE MATERIALS

Delegation of Responsibilities ConcerningFBI Employees Under the CivilService Reform Act of 1978,62 Fed. Reg. 23,123 (Apr. 17, 1997) ................. 34

Executive Order 11652 (Mar. 8, 1972),37 Fed. Reg. 5209 (Mar. 10, 1972) ........... 11, 12, 26

Executive Order 12065 (June 28, 1978),

43 Fed. Reg. 28,949 (July 3, 1978) ................... 12

Executive Order 13526 (Dec. 29, 2009),75 Fed. Reg. 707 (Jan. 5, 2010) ...................... 26, 28

Executive Order 13556 (Nov. 4, 2010),75 Fed. Reg. 68,675 (Nov. 9, 2010) ................... 26

Presidential Policy Directive 19(Oct. 10, 2012) ..................................................... 34

OTHER AUTHORITIES

P. Carlson,A. Ernest Fitzgerald: His

Commitment to Cutting Costs HasMade Him No. 1 on thePentagonsHate List, People, Dec. 9, 1985 ........................ 8

D. Codrea, Open Letter to SenateJudiciary Committee Staff on ProjectGunwalker,Examiner.com (Jan. 19,2011), http://www.examiner.com/article/open-letter-to-senate-judiciary-committee-staff-on-project-gunwalker ........ 30, 31

Govt Accountability Office,Departmentof Health and Human ServicesChief

Actuarys Communications withCongress(2004) (B-302911) .............................. 32


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Govt Accountability Office,InformationSharing(Mar. 2006)(GAO-06-385) .............. 24, 25

Govt Accountability Office,ManagingSensitive Information: DOE and DODCould Improve Their Policies andOversight(Mar. 14, 2006)(GAO-06-531T)................................................. 25, 26

Govt Accountability Office,

Transportation SecurityAdministration: Clear Policies andOversight Needed for Designation of

Sensitive Security Information(June 2005) (GAO-05-677) ................................. 25

Natl Archives, Controlled UnclassifiedInformation (CUI): FrequentlyAsked Questions,http://www.archives.gov/cui/faqs ..................... 26

Natl Archives, Controlled UnclassifiedInformation (CUI): CUI Chronology,

http://www.archives.gov/cui/chronology.html ..................................................................... 26

Report and Recommendations of thePresidential Task Force on ControlledUnclassified Information(Aug. 2009) ........ 24, 29

R. Suro & P. Thomas,FBI SuspendsInternal Critic of Its Crime LabProcedures, Wash. Post, Jan. 28, 1997,at A11 ................................................................... 33


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U.S. Dept of Justice, Office of InspectorGeneral, The FBI Laboratory: An

Investigation into LaboratoryPractices and Alleged Misconduct inExplosives-Related and Other Cases(Apr. 1997) ........................................................... 34


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IN THESupreme Court of the United States

NO.13-894

DEPARTMENT OF HOMELAND SECURITY,

Petitioner,

v.

ROBERT J.MACLEAN,

Respondent.

On Writ of Certiorarito the United States Court of Appeals

for the Federal Circuit

BRIEF OF MEMBERS OF CONGRESS ASAMICI CURIAEIN SUPPORT OF RESPONDENT

INTEREST OFAMICI CURIAE1

Amiciare six Members of Congress from both partieswho have taken leading roles in protecting whistleblow-ers. Amici have worked with whistleblowers to root outwaste, fraud, abuse, and mismanagement within Execu-

1Pursuant to this Courts Rule 37.6, amicistate that no counsel for aparty authored this brief in whole or in part, no such counsel or partymade a monetary contribution intended to fund the preparation or

submission of this brief, and no person other than amici or theircounsel made such a contribution. All parties have filed lettersgranting blanket consent to the filing of amicus briefs with theClerk.


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tive Branch departments and agencies. And they serveon committees with significant oversight responsibilitiesthat frequently rely on information from governmentemployees to discover agency malfeasance. Amicihave afirsthand understanding of the invaluable role whistle-blowers play in helping Congress monitor the federal bu-reaucracy and guard the public fisc. They know thatwhistleblowers are more likely to come forward whenthey can do so without fear of reprisal. Amicihave thusbeen active in ensuring that our Nations laws protectgovernment employees who come forward with infor-

mation about agency misconduct.

Senator Chuck Grassley (R-Iowa) is a co-author andoriginal co-sponsor of the Whistleblower Protection Actof 1989, as well as the Whistleblower Protection En-hancement Act of 2012. In the next Congress, he willchair the Senates newly formed Whistleblower Protec-tion Caucus.

Senator Ron Wyden (D-Ore.) will serve as Vice-Chairof the Whistleblower Protection Caucus. He is a co-author of the whistleblower protections granted to mem-

bers of the intelligence community in the 2014 Intelli-gence Authorization Act.

Representatives Darrell Issa (R-Cal.) and Elijah Cum-mings (D-Md.) are the Chair and Ranking Member of theHouse Committee on Oversight and Government Re-form, which has jurisdiction over whistleblower issues.Together they introduced the House version of what be-came the Whistleblower Protection Enhancement Act of2012, as well as the All Circuit Review Extension Act.

Representatives Blake Farenthold (R-Tex.) and Ste-

phen F. Lynch (D-Mass.) are the Chair and RankingMember of the House Oversight Committees Subcom-


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mittee on the Federal Workforce, U.S. Postal Service,and the Census. The Subcommittee has jurisdiction overwhistleblower issues.

The legislation amici have sponsored reinforced theprotections Congress first afforded whistleblowers in1978. Regrettably, much of that legislation was neces-sary to overturn decisions by the Merit Systems Protec-tion Board and the Federal Circuit that curtailed whis-tleblower protections by imposing limitations Congressnever authorized.

This time, the Federal Circuit got it right. The deci-sion below properly refused to adopt a new extrastatuto-ry restriction that would allow agencies to shield theirown misconduct by exempting certain disclosures fromwhistleblower protections. In rejecting that anomalousresult, the Federal Circuit honored not only the statutorytext but also Congresss consistent understanding of theprovision in question.

The Department of Homeland Security nonethelessasks this Court to impose the limitation that Congressand the Federal Circuit rejected, and hold that agenciesmay unilaterally deny whistleblower protections by ad-ministratively declaring a disclosure specifically prohib-ited. That interpretation would allow agency regula-tions to erode the statutory protections Congress createdfor whistleblowers. It would deter disclosure of govern-ment misconduct and impair Congresss oversight role.

Amicihave a strong interest in preventing that result.

SUMMARY OF ARGUMENT

By exposing agency illegality, waste, and corruption,whistleblowers provide invaluable assistance to Congressin the exercise of its oversight responsibilities. To ensurethat agency employees feel free to come forward, Con-


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gress has afforded whistleblowers robust protectionsagainst retaliation. Any disclosure of any legal violation,abuse of authority, gross waste or mismanagement, ordanger to public health or safety is protected against re-prisal unless the disclosed information is classified or thedisclosure is specifically prohibited by law. 5 U.S.C.2302(b)(8)(A). A disclosure is specifically prohibited bylaw only if it is barred by statute, not merely by agencyregulations. Allowing agencies to declare disclosuresspecifically prohibited by regulation would defy Con-gresss design and undermine its oversight role.

I.A. Congress deliberately crafted 2302(b)(8)(A) toexclude agency rules and regulations. It rejected lan-guage that would have withheld whistleblower protectionfrom public disclosures that are prohibited by law, rule,or regulation, out of concern that it would enable anagency to discourage an employee from coming forwardwith allegations of wrongdoing. S. Rep. No. 95-969, at21 (1978). Congress instead adopted a more whistleblow-er-protective approach, shielding disclosures unless spe-cifically prohibited by law. As Congress explained in

1978, specifically prohibited by law refers to statutorylaw and court interpretations of those statutes. It doesnot refer to agency rules and regulations. H.R. Conf.Rep. No. 95-1717, at 130 (1978) (emphasis added).

Congress has stood by that understanding ever since.It significantly revised the whistleblower statutes in theWhistleblower Protection Act of 1989 (WPA), the 1994amendments to the WPA, and the Whistleblower Protec-tion Enhancement Act of 2012. At every point, Congressreiterated its understanding that exceptions to whistle-

blower protections must be created by Congress via stat-ute, not by agencies via regulation. Indeed, the wholepoint of the WPA regime is to subject agencies to search-


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ing scrutiny, not to defer to their judgments about whatinformation Congressand the public should receive.

B. The tribunals responsible for interpreting thewhistleblower statutesthe Merit Systems ProtectionBoard and the Federal Circuithave agreed that a dis-closure must be prohibited by statute, not regulation, tobe denied protection under 2302(b)(8)(A). The Boardfirst adopted that view in 1993. Since then, Congress hasrepeatedly amended the WPA to overturn Board andFederal Circuit interpretations of other elements of thestatute, but it has consistently left that construction of2302(b)(8)(A) in place. Those actions confirm that Con-gress approves of the construction.

C. Both the statutory text and the legislative historyshow that, for a disclosure to be specifically prohibitedby law, Congress must have barred the disclosure withsufficient specificity to give whistleblowers fair notice.Put simply, a whistleblower must be able to tell fromreading the statute whether he will be shielded from re-taliation if he publicly discloses particular information.The statute the Department invokes here, 49 U.S.C.

114(r)(1), fails that test. Far from providing the requi-site specificity, it prohibits, at most, disclosures thatwould be detrimental to the security of transportation.That criterion provides no meaningful guidance to awhistleblower who exposes a security shortcoming in or-der to fix it. The fact that the Under Secretary decideswhether a disclosure would be detrimental only under-scores that it is the agency, not Congress, decidingwhether to prohibit the disclosure.

II. The Departments interpretation would interfere

with Congressional oversight. Federal agencies have al-ways found ways to keep information under wraps. Ifagencies could decide which disclosures receive whistle-


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blower protections, they would inevitably abuse thatpower. The result would be to deter whistleblowers andrestrict the flow of information to Congress.

A. The Departments interpretation would shrink theuniverse of information whistleblowers may bring tolight. The TSAs Sensitive Security Information (SSI)designation is but one of dozens of categories of so-calledSensitive But Unclassified information (SBU) whosedisclosure is restricted by agency regulations. Under theDepartments interpretation, most if not all of those cat-egories would be exempt from 2302(b)(8)(A)s protec-tions. But significant uncertainty would remain, as SBUdesignations are often poorly and inconsistently defined.

B. The Departments interpretation would impedeCongressional oversight. The burden of confirming thatno regulation prohibits disclosure will deter untold num-bers of whistleblowers. Allowing regulations to trumpwhistleblower protections will also increase the risk thatemployees will be discouraged from disclosing infor-mation to Congress. And it will prevent disclosures tothe media and other outlets from which Congress often

learns of agency misconduct. Congresss pipeline of in-formation would dry up, impairing its ability to overseethe federal bureaucracy.

C. The risk of agency overreach is apparent. Timeand again, agencies have found ways to suppress incon-venient information. The TSA itself has misused its SSIdesignation to withhold embarrassing information. Thepotential for such abuse is precisely why Congress de-nied agencies the power to carve out exceptions to thelaws that keep agencies in check.


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ARGUMENTWhistleblowers play a vital role in Congressional over-

sight of the federal bureaucracy. Members of Congresscannot station themselves or their staffs in agency officesto watch for evidence of malfeasance. Nor can they de-pend on agency officials to candidly self-report all prob-lems arising under their watch. Congress thus relies onindividuals working within agencies to supply the infor-mation it needs to guard the public purse and give effectto the checks and balances that are essential to the sepa-ration of powers. By blowing the whistle, those individu-als perform an invaluable public service. They save tax-payers billions of dollars, enhance government efficiencyand transparency, and safeguard the public welfare.

Whistleblowing has been a civic virtue for centuries.More than 200 years ago, the Continental Congress re-solved:

That it is the duty of all persons in the service of theUnited States, as well as all other the inhabitantsthereof, to give the earliest information to Congressor other proper authority of any misconduct, fraudsor misdemeanors committed by any officers or per-sons in the services of these states, which may cometo their knowledge.

Legislation of July 30, 1778, reprinted in Govt PrintingOffice,Journals of the Continental Congress, 1774-1789,at 732 (W.C. Ford et al. eds., 1908).

That duty has grown all the more important as ourNation and its government have grown. Modern whis-tleblowing likely began with Ernie Fitzgerald, probablythe most famous whistleblower of all time. 152 Cong.Rec. S1780 (Mar. 6, 2006) (Sen. Grassley). In 1968, Fitz-gerald testified before Congress about the C-5 transport


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aircraft program. He revealed that it had run $2 billionover budget, a fact the Air Force had tried to keep quiet.Ibid. Fitzgerald was later instrumental in helping Con-gress crack down on spare parts overpricinge.g.,pay-ing $900 for a 34 partsaving taxpayers millions. Ibid.;see P. Carlson, A. Ernest Fitzgerald: His Commitmentto Cutting Costs Has Made Him No. 1 on the Pentagons

Hate List, People, Dec. 9, 1985, http://www.people.com/people/archive/article/0,,20092407,00.html.

Valuable as whistleblower disclosures are to helpingCongress keep tabs on the bureaucracy, they are oftenembarrassing to agencies. Rather than celebrate whis-tleblowers, agencies are apt to treat them like a skunkat a picnic. 152 Cong. Rec. S1780 (Mar. 6, 2006) (Sen.Grassley). Ernie Fitzgerald, for example, was fired for(as he put it) committing truth before Congress. 160Cong. Rec. S2366 (Apr. 10, 2014) (Sen. Grassley). Re-grettably, the reward for rooting out waste and abuse atones workplace may be a forced search for a new work-place.

Because employees are understandably reluctant to

jeopardize their careers, Congress has afforded whistle-blowers robust protections. Most significantly, the Whis-tleblower Protection Act (WPA) forbids adverse agen-cy action against an employee because of his public dis-closure of information he reasonably believes to showany violation of any law, rule, or regulation, or grossmismanagement, a gross waste of funds, an abuse of au-thority, or a substantial and specific danger to publichealth or safety. 5 U.S.C. 2302(b)(8)(A)(i), (ii). Thatprotection admits only two narrow exceptions: disclo-

sures specifically prohibited by law and disclosures ofclassified information. Id.2302(b)(8)(A).


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Whistleblower protections thus serve as a twofoldcheck on agencies: They directly restrain agencies fromretaliating against whistleblowers. And, by doing so,they encourage whistleblowers to come forward with in-formation that helps Congress and the public hold agen-cies accountable. Those checks would work very poorlyindeed if agencies could extricate themselves from2302(b)(8)(A)s strictures by administratively declaringcertain disclosures specifically prohibited by law. Thatarrangement would perversely entrust the scope of whis-tleblower protection to the very entities against which

those protections are directed. That makes about asmuch sense as a traffic code that lets bad drivers decidewhich roads police may patrolnone at all.

There is no reason to think Congress created such anineffectual system. To the contrary, the WPA meanswhat it saysthat disclosures are protected unless spe-cifically prohibited by law, not merely by rule orregulation.

I. DISCLOSURE IS SPECIFICALLY PROHIBITED BY

LAWONLY IF IT IS PROHIBITED BY STATUTE

Section 2302(b)(8)(A) is commonly, and properly, un-derstood as a cornerstone of the Whistleblower Protec-tion Act of 1989. But its foundations go deeper. Con-gress first enacted 2302(b)(8)(A) as part of the CivilService Reform Act of 1978, Pub. L. No. 95-454, 92Stat. 1111. Over the years, Congress has amended2302(b)(8)(A) and related provisions repeatedly, often tooverturn administrative and judicial decisions that dilut-ed whistleblower protections. One thing, however, hasremained constant. Congress has long understood that a

disclosure is specifically prohibited by lawand there-fore exempt from 2302(b)(8)(A)s protectionsonlywhere the disclosure has been forbidden by Congressvia


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statute, and not merely by the agenciesthe provision isdesigned to check.

A. Congress Has Consistently Understood

2302(b)(8)(A) To Require That Disclosure Be

Prohibited by Statute

1. Civil Service Reform Act of 1978

The Civil Service Reform Act of 1978 (CSRA) over-hauled the federal civil service to be consistent withmerit system principles and free from prohibited person-nel practices. CSRA 3(1), 92 Stat. 1112 (5 U.S.C.

1101 note). To ensure fair notice of what is expected ofemployees and managers alike, Congress declared it thepolicy of the United States that prohibited personnelpractices should be statutorily definedto enable Federalemployees to avoid conduct which undermines * * * theintegrity of the merit system. CSRA 3(2), 92 Stat.1112 (5 U.S.C. 1101 note) (emphasis added).

Most important here, the CSRA created the first anti-retaliation protections for federal-employee whistleblow-ers. It forbade agency reprisal against an employee fordisclosure of information he reasonably believes evi-dences either (i) a violation of any law, rule, or regula-tion or (ii) mismanagement, a gross waste of funds, anabuse of authority, or a substantial and specific danger topublic health or safety. CSRA 101(a), 92 Stat. 1116(codified as amended at 5 U.S.C. 2302(b)(8)(A)). Con-gress qualified that protection in just two small ways.Under 2302(b)(8)(A)s proviso, whistleblowers were pro-tected so long as disclosure is not specifically prohibitedby law and such information is not specifically requiredby Executive order to be kept secret in the interest of

national defense or the conduct of foreign affairs. Ibid.


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Congress carefully considered 2302(b)(8)(A)s properscope. The original Senate bill contained a broader pro-viso: It would have barred reprisal against an employeewho publicly disclosed a violation of a law, rule, or regula-tion, as long as the disclosure itself was not prohibited byany law, rule, or regulation. S. Rep. No. 95-969, at 21(1978) (1978 Senate Report) (emphasis added). Thatproposal had the virtue of symmetry. But it sparkedconcerns that limiting protection to those disclosuresnot prohibited by law, rule, or regulation, would encour-age the adoption of internal procedural regulations

against disclosure, and thereby enable an agency to dis-courage an employee from coming forward with allega-tions of wrongdoing. Ibid. The Senate GovernmentalAffairs Committee thus amended the proviso to denyagencies that power. Under the revised bill, disclosureswould be protected unless prohibited by statuteor Ex-ecutive Order 11652 [concerning classified information],or any related amendments thereto. Id.at 154 (empha-sis added).

The House bill always took an asymmetric approach.

It protected disclosures of violation[s] of any law, rule,or regulation but withheld protection only for disclo-sures specifically prohibited by law (as well as disclo-sures of information classified pursuant to Executive Or-der). H.R. Rep. No. 95-1403, at 146 (1978) (1978 House

Report) (emphasis added).

Congress ultimately adopted the House version of theproviso. It did so, however, on the understanding thatthere was no difference between disclosures prohibitedby statute and disclosures prohibited by law. In

sending the final bill to the two chambers, the Confer-ence Report explained that [t]he reference to disclo-sures specifically prohibited by law is meant to refer to


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statutorylaw and court interpretations of those statutes.It does not refer to agency rules and regulations. H.R.Conf. Rep. No. 95-1717, at 130 (1978) (1978 Conference

Report) (emphasis added). Congress thus understoodthat the use of the term law rather than statute hadno impact on 2302(b)(8)(A)s scope. In this context, bothmean the same thing.2

The Conference Report merely made explicit whatwas already apparent from the provisions text. Section2302(b)(8)(A) takes an asymmetric approach to whistle-blowing. It protectswhistleblowers in a broad array ofcases, including disclosures of violations of any law, rule,or regulation. But the sections proviso deniesprotec-tion only in the narrower circumstance where the disclo-sure is a violation of law, omitting reference to rulesand regulations. The clear implication is that the proviso

2The adoption of the House version likely had more to do with theexemption for classified information than with the exemption for dis-closures prohibited by law. The Senate version would have deniedwhistleblower protection for public disclosures prohibited by Exec-

utive Order 11652, or any related amendments thereto. 1978 Sen-ate Report154. Executive Order 11652, in turn, provided for classifi-cation of information or material which requires protection againstunauthorized disclosure in the interest of the national defense orforeign relations of the United States. Executive Order 11652, 1(Mar. 8, 1972), 37 Fed. Reg. 5209 (Mar. 10, 1972). The House versiondid essentially the same thing, but referred generally to disclosuresof information specifically required by Executive order to be keptsecret in the interest of national defense or the conduct of foreignaffairs. 1978 House Report 146. The Houses language was likelychosen because it would better accommodate new Executive Ordersconcerning classified information. Case in point: Executive Order

11652 had itself been revoked and replaced in June 1978, two monthsbefore the House and Senate passed their versions of the bill. SeeExecutive Order 12065, 6-203 (June 28, 1978), 43 Fed. Reg. 28,949(July 3, 1978).


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does not apply to disclosures forbidden by rule or regula-tion, but only to disclosures prohibited by law. And iflaw excludes rules and regulations, it can only meanstatutes.

Where Congress includes particular language in onesection of a statute but omits it in another section of thesame Act, it is generally presumed that Congress actsintentionally and purposely in the disparate inclusion orexclusion. Russello v. United States, 464 U.S. 16, 23(1983) (brackets omitted). Here, the legislative recordconfirms that that presumption is correct. The Senateaffirmatively deleteda reference to rules and regulations,to avoid enabl[ing] an agency to discourage an employeefrom coming forward with allegations of wrongdoing.1978 Senate Report 21. And the Conference Committeememorialized its understanding that law means stat-utes and does not refer to agency rules and regulations.1978 Conference Report 130. The Departments interpre-tation ignores all that, and grants agencies precisely thepower Congress sought to deny them.

2. Whistleblower Protection Act of 1989

The CSRA unfortunately did little to encourage Fed-eral employees confidence in their ability to reveal prob-lems in their agencies. 135 Cong. Rec. 4516 (1989) (Sen.Cohen). One of the chief impediments, Congress con-cluded, was a string of restrictive Merit Systems Pro-tection Board and federal court decisions that had madeit unduly difficult for whistleblowers * * * to win re-dress. Id.at 4512 (Joint Explanatory Statement). Con-gress thus enacted the Whistleblower Protection Act of1989, Pub. L. No. 101-12, 103 Stat. 16 (WPA), to modi-

fy or overturn inappropriate administrative or judicialdeterminations and make it more likely that whistleblow-


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ers * * * will win their cases, 135 Cong. Rec. 4512 (JointExplanatory Statement).

a. The WPA did notrevisit 2302(b)(8)(A)s specifi-cally prohibited by law proviso. It had no need to. Nojudicial or administrative decision had read the proviso asreferring to anything other than disclosures prohibitedby statute. And Congresss understanding remained un-changed. The Conference Committee declared: It isobvious, but worth noting, that no Executive order, regu-lation, or contract can extinguish the rights provided un-der section 2302 of title 5. 135 Cong. Rec. 4514 (JointExplanatory Statement) (emphasis added). Committeereports for early versions of the bill reaffirmed that2302(b)(8)(A)s proviso concerns disclosure of infor-mation the public release of which is barred by statute.H.R. Rep. No. 99-859, at 16 (1986) (emphasis added); ac-cord H.R. Rep. No. 100-274, at 17-18 (1987).

The WPA did amend 2302(b)(8) in a small but mean-ingful way. Where the statute had previously protecteda disclosure of agency misconduct, it now protectedany disclosure of agency misconduct. WPA 4(a)(3),

(5), 103 Stat. 32 (5 U.S.C. 2302(b)(8)(A), (B)) (emphasisadded). By using the word any, Congress emphasizedthat the statutes protections are meant to be expan-sive. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 219(2008).

b. More substantively, the WPA tilted the playingfield sharply in favor of whistleblowers and against agen-cies. It provided that, when a whistleblower alleges re-taliation before the Merit Systems Protection Board, theBoard generally must order appropriate corrective action

so long as a protected disclosure was a contributing fac-tor in the challenged agency action. WPA 3(a)(13), 103Stat. 26, 30 (5 U.S.C. 1214(b)(4)(B)(i), 1221(e)(1)). That


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lenient standard was specifically intended to overrulecases demanding proof that the disclosure was a signif-icant, motivating, substantial, or predominant factor.135 Cong. Rec. 4509 (Sen. Levin). Agencies, by contrast,shoulder a far heavier burden: To avoid corrective ac-tion, an agency must show by clear and convincing evi-dencethat it would have taken the same personnel actionin the absence of such disclosure. WPA 3(a)(13), 103Stat. 26, 30 (5 U.S.C. 1214(b)(4)(B)(ii), 1221(e)(2)) (em-phasis added).3

Those asymmetric burdens are of a piece with2302(b)(8)(A)s asymmetric approach to defining pro-tected disclosures. See pp. 11-13, supra. Both reflectCongresss deep-seated concern that agencies empow-ered to administer the whistleblower laws are apt to turnthem into tools for exonerating, rather than exposing,agency misconduct.4 It would have achieved little tomake it so easy for whistleblowers to establish retaliationfor protected disclosuresand so hard for agencies tojustify their actions on other groundsif Congress had

3That standard was intended to increase the level of proof applicableunder Mt. Healthy City School District Board of Education v.Doyle, 429 U.S. 274 (1977), which allows an employer to escape liabil-ity by showing by a preponderance of the evidence that it wouldhave taken the same action even in the absence of the protectedconduct, id. at 287; see 135 Cong. Rec. 4513 (Joint ExplanatoryStatement).4See 1978 Senate Report21 (expressing concern that exempting dis-closures prohibited by rule or regulation would enable an agency todiscourage an employee from coming forward with allegations of

wrongdoing); 135 Cong. Rec. 4509 (Sen. Levin) (explaining that anagency bears a heavy burden to justify its actions because, whenit comes to proving the basis for an agencys decision, the agencycontrols most of the cards, such as documents and witnesses).


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also given agencies the trump card of deciding what dis-closures are protected in the first place.

c. The WPA continued to observe the distinction be-tween law (meaning statutes) and rules and regula-tions. Several provisions illustrate the point:

One paragraph authorizes the Special Counselto review disclosures of violations of any law,rule, or regulation. WPA 3(a)(13), 103 Stat.19 (5 U.S.C. 1212(a)(3)) (emphasis added).

The next paragraph authorizes the Special

Counsel to review rules and regulations is-sued by the Director of the Office of PersonnelManagement. Ibid. (5 U.S.C. 1212(a)(4))(emphasis added).

The paragraph after that directs the SpecialCounsel to investigate violations of other lawswithin the jurisdiction of the Office of SpecialCounsel (as referred to in section 1216). Id.3(a)(13), 103 Stat. 19-20 (5 U.S.C. 1212(a)(5))(emphasis added).

Section 1216, in turn, identifies various statuto-ryprovisions, such as the Hatch Act and Free-dom of Information Act.5

Thus, in the WPA, as in the CSRA, Congress carefullydistinguished between different kinds of legal authority.It understood that, in the whistleblower context, agencies

5See 5 U.S.C. 1216(a) (103 Stat. 28) (referring to subchapter III ofchapter 73, chapter 15, and section 552 of Title 5, United StatesCode). Section 1216s lone reference to non-statutory authority ap-

pears in a catch-all provision referring to activities prohibited byany civil service law, rule, or regulation. Id. 1216(a)(4) (emphasisadded). Section 1216 itself thus demonstrates that the term law inthe whistleblower statutes does not encompass rules and regulations.


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make rules and regulations, while Congress makeslaw.

3. The 1994 Amendments

Congress amended the WPA in 1994, again taking aimat unduly restrictive interpretations of the law. See Pub.L. No. 103-424, 108 Stat. 4361 (1994) (1994 Amend-ments). The House Report criticized the Boards ina-bility to understand that any means any, and that theWPA protects any disclosure evidencing a reasonablebelief of specified misconduct. H.R. Rep. No. 103-769, at

18 (1994). It reiterated Congresss understanding that[t]he only restrictions are for classified information ormaterial the release of which is specifically prohibitedbystatute. Ibid. (emphasis added); see also S. Rep. No.107-349, at 14-15 (2002) (quoting this statement). As be-fore, however, Congress had no occasion to address thescope of 2302(b)(8)(A); no court or administrative tribu-nal had read that provision differently from Congress.Indeed, the Board had adopted the same interpretationas Congress. See p. 20, infra.

But Congress did seek to restore the balance intend-ed in the Whistleblower Protection Act by correctingother, erroneous interpretations of the law. S. Rep. No.103-358, at 8 (1994). It overturned a Federal Circuit de-cision restricting whistleblowers use of circumstantialevidence to prove retaliation. See ibid.; 1994 Amend-ments 4(b), 108 Stat. 4363 (5 U.S.C. 1221(e)(1)). Con-gress also rejected the Office of Special Counsels viewthat it had unfettered authority to utilize informationabout whistleblowers during the course of an investiga-tion in any way it pleasesincluding by disclosing that

information to the agency accused of retaliation. S. Rep.No. 103-358, at 6; see 1994 Amendments 3(b), 108 Stat.4362 (5 U.S.C. 1212(g)(1)).


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4.

Whistleblower Protection Enhancement Act of2012

Congress again amended the WPA in the Whistle-blower Protection Enhancement Act of 2012, Pub. L. No.112-199, 126 Stat. 1465 (WPEA). As before, Congresswas concerned that the Federal Circuit and the [Board]have continued to undermine the WPAs intended mean-ing by imposing limitations on the kinds of disclosures bywhistleblowers that are protected. S. Rep. No. 112-155,at 4-5 (2012) (2012 Senate Report). Congress reiterat-ed its long-held view that the WPAs plain language co-vers any disclosure. Id. at 4. And it reaffirmed that[t]he only restrictions are for classified information ormaterial the release of which is specifically prohibited bystatute. Ibid. (quoting H.R. Rep. No. 103-769, at 18)(emphasis added).

Again, there was no need to revisit 2302(b)(8)(A)sproviso. As discussed below, see pp. 20-21, infra, in 2009the Board interpreted the proviso to extend to disclo-sures prohibited by any regulation with the force of law.But the Board retreated from that position two years lat-

er, and in 2012 the matter was on appeal to the FederalCircuit. Amending the WPA to clarify that a disclosuremust be prohibited by statute thus might have errone-ously implied that the existing language did not alreadysay that. At the same time, Members of Congress recog-nized that [i]f the Federal Circuit Court [were to]broaden[] the prohibited by law exemption to includeanything that an agency tries to keep secret under any oftheir regulations, Congress would have to close thatnew loophole. 158 Cong. Rec. E1664 (Sept. 28, 2012)

(Rep. Platts). Representative Platts, a WPEA co-author,thus sought to once again make it clear: Prohibited bylaw has long been understood to mean statutory law and


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court interpretations of those statutes, not * * * agencyrules and regulations. * * * That has been the law since1978, and it continues to be the law. Ibid.

In the WPEA, Congress had its hands full addressingdecisions that had interpreted other aspects of the WPAcontrary to congressional intent. 2012 Senate Report5.It overturned Federal Circuit decisions denying protec-tion to disclosures to the alleged wrongdoer, disclo-sure[s] made as part of an employees normal job duties,and disclosures of information already known. Ibid.(citing cases); see WPEA 101(b)(2)(C), 126 Stat. 1466 (5U.S.C. 2302(f)). And it once again underscore[d] thebreadth of the WPAs protection by changing the term aviolation [of any law, rule, or regulation] to the term anyviolation [of any law, rule, or regulation] in 2302(b)(8).2012 Senate Report 8 (emphasis added); see WPEA101(a), 126 Stat. 1465 (5 U.S.C. 2302(b)(8)(A)(i), (B)(i)).

The WPEA also expressly granted TSA employeesfull whistleblower protections. WPEA 109(a)(2), 126Stat. 1470 (5 U.S.C. 2304(a)(1)); contrast 5 U.S.C. 2303(affording lesser protection to FBI whistleblowers). In

doing so, Congress again observed the distinction be-tween law (meaning statutes) and rules and regula-tions that it embraced in 1978.6

6Paragraphs (1) and (2) of 5 U.S.C. 2304(a) state that TSA employ-ees are covered by (1) the provisions of section 2302(b)(1), (8), and(9), and (2) any provision of lawimplementing those three statu-tory provisions. 5 U.S.C. 2304(a)(1), (2) (emphasis added). Para-graph (3) then states that TSA employees are also covered by any

rule or regulation prescribed under any provisionoflaw referred toin paragraph (1) or (2). Id. 2304(a)(3) (emphasis added). Para-graph (3) would be redundant if rules and regulations qualified aslaw, for they would already be encompassed within paragraph (2).


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B.

Congress Has Relied on Administrative andJudicial Decisions Requiring That Disclosure

Be Prohibited by Statute

As the above history makes clear, Congress has beenextraordinarily attentive to judicial and administrativedecisions interpreting the whistleblower protection laws.It has not been shy in amending those laws when it disa-grees with how a tribunal has interpreted them. Indeed,the 1989, 1994, and 2012 amendments were all designedto overturn decisions that Congress believed misunder-stood the proper scope of whistleblower protections.

Section 2302(b)(8)(A)s specifically prohibited by lawproviso, however, has not been misunderstood. Whilecase law interpreting the proviso is relatively scarce (andmost of it stems from this case), what decisions there areconfirm Congresss understanding that disclosure mustbe prohibited by a statute, not a mere regulation.

The first decision construing the proviso appears to beKent v. General Services Administration, 56 M.S.P.R.536 (1993). There, the Board carefully examined thestatutory language, coupled with the legislative history ofthe CSRA, subsequently amended by the WPA. Id. at542. It found a clear legislative intent to limit the termspecifically prohibited by law in section 2302(b)(8) tostatutes and court interpretations of those statutes.

Ibid.(emphasis added).

The Board adhered to that view for 16 years. It brief-ly reversed course in an earlier iteration of this case, rea-soning that Congresss selection of the broader phraseby law instead of the purportedly narrower phrase bystatute evidences Congressional intent to expand the

scope of the exemption beyond mere statutes to includeall law, including agency regulations. MacLean v.

Dept of Homeland Sec., 112 M.S.P.R. 4, 16 (2009). But


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that interpretation was short-lived. The Board repudiat-ed it just two years later, recognizing that allowing agen-cy regulations to dictate the scope of whistleblower pro-tections in the absence of an explicit Congressionalmandate would be inconsistent with the policies thatCongress embodied in the Whistleblower ProtectionAct. MacLeanv. Dept of Homeland Sec., 116 M.S.P.R.562, 570 (2011). In the decision below, the Federal Cir-cuit agreed that a disclosure must be prohibited by astatute rather than by a regulation to fall within theprovisoindeed, that proposition was not dispute[d].

714 F.3d 1301, 1308 (Fed. Cir. 2013).

Thus, starting withKent in 1993, the tribunals respon-sible for construing the whistleblower laws have inter-preted 2302(b)(8)(A)s proviso to encompass only disclo-sures prohibited by statutes, not regulations. Since then,Congress has twice amended the WPAin 1994 and2012with the express purpose of overturning those tri-bunals interpretations of other parts of the statute. Allthe while, 2302(b)(8)(A)s specifically prohibited bylaw language has remain unchanged.

That is powerful evidence that Congress approves ofthe interpretation attached to those words. See Mi-crosoft Corp. v. i4i Ltd. Pship, 131 S. Ct. 2238, 2252(2011) (inferring Congressional satisfaction with existinginterpretation where relevant text has gone untoucheddespite other amendments). It is, after all, well estab-lished that when Congress revisits a statute giving rise toa longstanding administrative interpretation without per-tinent change, the congressional failure to revise or re-peal the agencys interpretation is persuasive evidence

that the interpretation is the one intended by Congress.Commodity Futures Trading Commnv.Schor, 478 U.S.833, 846 (1986) (quotation marks omitted). And this


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Court has recognized that the presumption that Con-gress intends to adopt an administrative or judicial in-terpretation of a statute is particularly appropriatewhere in enacting [later legislation] Congress exhibitedboth a detailed knowledge of the [existing] provisions andtheir judicial interpretation and a willingness to departfrom those provisions regarded as undesirable. Lo-rillardv.Pons, 434 U.S. 575, 581 (1978). That is exactlywhat Congress did here.

C. Section 114(r)(1) Does Not Specifically Pro-

hibit Disclosure of the Information Here

For a disclosure to be specifically prohibited by law,Congressmust have barred the disclosure with meaning-

ful specificity. That is not only what the text requires; itis also necessary to ensure fair notice and avoid deterringlegitimate disclosures. A statutory prohibition is suffi-ciently specific only if it leave[s] no discretion on the is-sue, establishes particular criteria for withholding, orrefers to particular types of matters to be withheld.1978 Senate Report 21. Put simply, a prospective whis-tleblower must be able to tell from reading the statute

whether or not he will be shielded from retaliation if hepublicly discloses particular information.

The Department argues that 49 U.S.C. 114(r)(1) spe-cifically prohibited MacLeans disclosure here. Pet. Br.28.7 But that statute fails to provide the requisite speci-ficity, at least on the facts of this case. [D]isclosure[s]* * * detrimental to the security of transportation, 49U.S.C. 114(r)(1)(C), is a broad and general category.

7

Although the decisions below focused on 40119(b), the partiesagree that 114(r) is the relevant statute. See Pet. Br. 10 n.2; Resp.Br. 7 n.2. We follow the parties lead and focus on 114(r), althoughthe analysis would be the same under both.


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Just from reading the statute, it is far from clear whetherthe particular information MacLean disclosed is included.

Indeed, such ambiguity may be unavoidable where adisclosure concerns a specific danger to public health orsafety. 5 U.S.C. 2302(b)(8)(A). A disclosure might beseen as detrimental because it reveals a vulnerability inour Nations infrastructure that could be exploited. Butthe same disclosure could be seen as beneficialbecause itcalls attention to the vulnerability and expedites its cor-rection. That is why the WPA generally protects suchdisclosures. Cf. 1978 Senate Report 8 (What is needed isa means to protect * * * the nuclear engineer who ques-tions the safety of certain nuclear plants.); 6 U.S.C.133(c) (permitting whistleblower disclosure of inde-pendently obtained critical infrastructure information).

Nothing in 114(r)(1) clearly indicates that Congressplaced the information MacLean disclosed on the detri-mental side of the line. And the fact that the UnderSecretary decides which disclosures are prohibited, 49U.S.C. 114(r)(1), underscores that the statutedoes notanswer that question; the agencymakes the call. That is

precisely what 2302(b)(8)(A) declares insufficient towithdraw whistleblower protection.

II. ALLOWING AGENCIES TO CREATE EXCEPTIONS TO

WHISTLEBLOWER PROTECTIONS WOULD UNDER-

MINE CONGRESSS OVERSIGHT ROLE

Allowing agencies to specifically prohibit disclosuresunder 2302(b)(8)(A) would compromise whistleblowerprotections and Congressional oversight. Agencies havebarred disclosure of vast swaths of information by rulesand regulations. Under the Departments interpretation,

public disclosure of much (if not all) of that informationwould be specifically prohibited by law. That woulddramatically shrink the universe of information whistle-


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blowers may expose to public scrutinya problem exac-erbated by the haphazard approach many agencies taketoward designating sensitive information. It would alsochill non-prohibited disclosures, including disclosures toCongress. And it would open the door to agency over-reach in suppressing inconvenient information, as dec-ades of experience confirms.

A. Agency Rules and Regulations Create Dozens

of Categories of Unclassified Information That

Are Often Poorly Defined

This case concerns the TSAs Sensitive Security In-formation (SSI) designation. But SSI is just one subsetof a much broader group known as Sensitive But Un-classified information, or SBU. SBU is [i]nformationthat does not meet the standards established by execu-tive order for classified national security information butthat an agency nonetheless considers sufficiently sensi-tive to warrant restricted dissemination. Govt Ac-countability Office, Information Sharing 13 (Mar. 2006)(GAO-06-385) (Information Sharing).

There are dozens of categories of SBU used across thefederal bureaucracy. A 2006 survey found a total of 56different designations, Information Sharing21; see id.at 22-23 tbl.2, while a 2009 report counted 117 categories,

Report and Recommendations of the Presidential Task

Force on Controlled Unclassified Information 33-34(Aug. 2009) (Task Force). A single label, moreover,might refer to multiple kinds of information. For exam-ple, while 13 agencies use the designation For OfficialUse Only, there are at least five different definitions ofFOUO. Information Sharing24. Similarly, [a]t least

seven agencies or agency components use the term LawEnforcement Sensitive but define it differently. Ibid.


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The standards for designating information as SBU areoften vague or arbitrarily applied. For example, theGAO found in 2005 (after MacLeans disclosure here)that the TSA does not have written policies and proce-dures, beyond its SSI regulations, providing criteria fordetermining what constitutes SSI. Govt AccountabilityOffice, Transportation Security Administration: Clear

Policies and Oversight Needed for Designation of Sensi-

tive Security Information 3 (June 2005) (GAO-05-677).The TSA itself acknowledged that [i]dentification ofSSI has often appeared to be ad-hoc, marked by confu-

sion and disagreement depending on the viewpoint, expe-rience, and training of the identifier. Id. at 5. Andwhile the TSA urged in 2005 that its new SSI ProgramOffice will ultimately be responsible for ensuring thatstaff are consistently applying SSI designations, id.at 6,a 2014 investigation concluded that the TSA Adminis-trator repeatedly neglected to consult with the SSI Officewhen making SSI determinations, effectively ren-der[ing] the SSI Office powerless, House Comm. onOversight & Govt Reform, Pseudo-Classification of Ex-

ecutive Branch Documents: Problems with the Trans-portation Security Administrations Use of the Sensitive

Security Information (SSI) Designation 22 (July 24,2014) (Pseudo-Classification Report).

The TSA is not alone in its ill-defined approach toSBU. [M]ost agencies do not have limits on who andhow many employees have authority to make designa-tions. Information Sharing 6. And agencies that dohave SBU policies may lack sufficient clarity in theirpolicies or may not routinely conduct oversight to en-sure that policies are properly applied. Govt Accounta-bility Office,Managing Sensitive Information: DOE and

DOD Could Improve Their Policies and Oversight 3, 7


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(Mar. 14, 2006) (GAO-06-531T). As one example, the De-partment of Energy restricted public access to time andcost estimates for a radioactive waste cleanup projectplagued by delays and budget overruns. Id. at 7. Thewithheld document was marked Business Sensitive byDOEeven though Business Sensitive is not a recog-nized marking in DOE. Ibid.

In short, the designation of SBU is governed by a m-lange of ad hoc, agency-specific policies. Executive Or-der 13556, 1 (Nov. 4, 2010), 75 Fed. Reg. 68,675 (Nov. 9,2010). As the President has recognized, [t]his ineffi-cient, confusing patchwork has resulted in inconsistentmarking and safeguarding of documents, led to unclearor unnecessarily restrictive dissemination policies, andcreated impediments to authorized information sharing.

Ibid.8

SBU stands in marked contrast to classified infor-mation, which Congress did exempt from the WPA.There are only three categories of classified information:Top Secret, Secret, and Confidential. Executive Order13526, 1.2 (Dec. 29, 2009), 75 Fed. Reg. 707 (Jan. 5,

2010). Information can be classified only according tospecific criteria, id. 1.4, only by certain officials, id. 1.3,and only for a limited duration, id. 1.5. And once mate-rial is classified, it must be marked so that its classifica-tion statusas well as its reason for classificationisimmediately apparent. Id.1.6. While those rules may

8While there have been efforts to improve management of SBU, seeExecutive Order 13556; Natl Archives, Controlled Unclassified In-formation (CUI): CUI Chronology, http://www.archives.gov/cui/

chronology.html, there are still currently over 100 different ways ofcharacterizing SBU information, Natl Archives, Controlled Un-classified Information (CUI): Frequently Asked Questions, http://www.archives.gov/cui/faqs.


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leave some room for judgment, Congress determinedthat the interest of national defense or the conduct offoreign affairs outweighed such concerns. 5 U.S.C.2302(b)(8)(A). But Congress made no such determina-tion for SBU, where the risk of arbitrary application ismuch greater and the need for secrecy much less.

Allowing agencies disparate SBU regimes to trumpwhistleblower protections thus would not only shrink theuniverse of information subject to public scrutiny, butwould do so in a thoroughly unpredictable and arbitrarymanner. That is not the system Congress designed.

B. Agency-Created Exceptions Would Deter Whis-

tleblowing and Impair Congressional Oversight

The Departments interpretation would chill protectedwhistleblowing and block the flow of information to Con-gress.

1. Under the Departments interpretation, whistle-blowers would have to review (or hire counsel to review)not only the relevant statutes, but also a plethora of po-tentially vague or ambiguous regulations. SBU is often

poorly defined and inconsistently applied, and it may notbe apparent whether an agency has declared somethingnondisclosable, much less done so through a regulationwith the force and effect of law. That determinationmay turn on a subtle legal analysis of whether a regula-tion affect[s] individual rights and obligations; whetherits promulgation * * * conform[s] with any proceduralrequirements imposed by Congress; and whether somestatute can reasonably be said to have contemplate[d]the regulation. Pet. Br. 21 (quoting Chrysler Corp. v.

Brown, 441 U.S. 281, 302, 303, 308 (1979)). Most federal

employees are not lawyers, and Congress did not expectthem to have to undertake that analysis before blowingthe whistle. Instead, Congress required them to answer


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only the much simpler question of whether astatute spe-cifically prohibitstheir anticipated disclosure.

Faced with the obstacles the Departments interpreta-tion would introduce, some employees will doubtless con-clude that blowing the whistle is not worth the trouble.As a result, many valuable and lawful disclosures will gounmade. The regime Congress designed, by contrast,avoids many of those difficulties. All statutes have theforce and effect of lawthey are law. And all infor-mation classified pursuant to Executive Order must beconspicuously labeled as such. See Executive Order13526, 1.6.

2. The Departments interpretation would impairCongresss ability to gather information about agencymisconduct. Many SBU designations do include exemp-tions for disclosures to Congress. See, e.g., 49 U.S.C.114(r)(2); see also 5 U.S.C. 2302(b) (WPA does notauthorize the withholding of information from Congressor the taking of any personnel action against an employeewho discloses information to Congress). But agencyemployees may fail to appreciate carve-outs for Congres-

sional disclosures when virtually every other kind of dis-closure is forbidden. They may instead assume that adisclosure specifically prohibited by [regulation] is cat-egorically out of bounds, even if made to Congress.

That is no idle worry. Amiciroutinely hear from fed-eral employees who want to blow the whistle but are un-willing to share specific allegations out of fear of violatingagency regulationsor giving superiors an excuse toclaim that they violated such regulations. Potential whis-tleblowers also often fear that a protected disclosure to

Congress may lead to subsequent publicdisclosures forwhich they could be blamed and punished. In other in-stances, whistleblowers are willing to share particular


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concerns, but believe they cannot provide substantiatingevidence because of SBU markings on documents. Amicisee this phenomenon among whistleblowers who are nev-ertheless willing to put themselves at risk by making lim-ited contact with Congress. Almost certainly, many moreare deterred from making even that effort.

Even in official agency settings, the markings [of in-formation as SBU] are sometimes misunderstood asproviding an independent basis for withholding docu-ments from the public, Congress, or the courts. Task

Force6. That can occur even when an SBU designationhas no basis in statute. Ibid. While a Congressional of-fice may be able to overcome improper withholding byelevating a request within the agency, whistleblowersface obvious obstacles to doing soespecially if they seekto make disclosures confidentially to avoid retaliation.The risk of confusion about the scope of agency regula-tions thus underscores the importance of cabining2302(b)(8)(A)s proviso to its properlimitedscope.

3. As a practical matter, moreover, Congress com-monly learns of agency misconduct indirectly, when em-

ployees blow the whistle to the media or other intermedi-aries first. Some whistleblowers may view Congress astoo politicized or intimidating. But they may see the me-dia as a disinterested Fourth Estate willing to take up acause in the public interest, or as the quickest and surestway to impose accountability. Other whistleblowers maywant to convey information to Congress but not see aclear route to the right offices or committees. In suchcases, disclosure to the press is an effective way to dis-seminate information widely to Members of Congress

and their staffs. It can also attract public attention andgenerate momentum for Congressional oversight in a


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way that contacting Congressional offices privately mightnot.

This case illustrates the value of such disclosures.MacLean blew the whistle by contacting the media.When his story was published, Members of Congressfrom both parties condemned the TSAs directive thevery next day. See Resp. Br. 11-12. And once Congressweighed in, the Department immediately branded thedirective a mistake and rescinded it. Ibid.

Similar cases abound. For example, online postings

spurred Congresss investigation into the Bureau of Al-cohol, Tobacco, Firearms, and Explosives controversialgun-walking operation. Within days of Border PatrolAgent Brian Terry being killed near the Arizona-Mexicoborder, a post appeared on an online message boardfrequented by ATF agents, stating that ATF had[a]llegedly approved more than 500 AR-15 type riflesfrom Phoenix and Tucson cases to be walked into Mexi-co and that one of those rifles had been linked to Terrysdeath. See Joint Staff Report, House Comm. on Over-sight and Govt Reform & Senate Comm. on the Judici-

ary,Fast and Furious: The Anatomy of a Failed Opera-tion, Part I, App. I, Ex. 201 (July 31, 2012), http://oversight.house.gov/wp-content/uploads/2012/07/7-31-12-FF-Part-I-FINAL-Appendix-I-3-of-3.pdf (Jan. 5, 2011ATF e-mail quoting post). The post caught the attentionof bloggers and other media outlets (as well as seniorATF officials, who discussed whether the post violatedATF disclosure policies, ibid.).

Shortly thereafter, another website posted an OpenLetter to Senate Judiciary Committee staff on Project

Gunwalker. See D. Codrea, Open Letter to Senate Ju-diciary Committee Staff on Project Gunwalker, Exam-iner.com (Jan. 19, 2011), http://www.examiner.com/article/


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open-letter-to-senate-judiciary-committee-staff-on-project-gunwalker. The letter stated:

ATF employees are looking to come forward andprovide testimony and documentation about gunsbeing illegally transported to Mexico, with man-agement cognizance * * * . * * * In order for thesepeople to come forward, they require whistle-blower protection.

Ibid. That letter led directly to Congressional staff get-ting in contact with ATF whistleblowers, and subsequent

Congressional oversight.That roundabout path to contacting Congress is not

unusual. Many whistleblowers make several disclosuresbefore getting their information to someone able andwilling to address the problem being disclosed. Congres-sional oversight thus benefits from disclosures to a varie-ty of audiences, including the media and public interestgroups. That is one reason the WPA is not limited to dis-closures to Congress. Under the Departments interpre-tation of 2302(b)(8)(A), however, that conduit of infor-mation would dry up.

C. The Risk of Agency Overreach Is Apparent

Common sense counsels that allowing agencies to de-cide the protections available to employees who exposeagency misconduct is like putting the fox in charge ofthe henhouse. 160 Cong. Rec. S2367 (Apr. 10, 2014)(Sen. Grassley). Experience bears that out. Agencieshave excelled at finding ways to suppress inconvenientinformation where the opportunity has arisen.

1. Congress enacted the Lloyd-LaFollette Act in

1912 to guarantee[] that the right of civil servants tofurnish information to either House of Congress, or toany committee or member thereof, shall not be denied or


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interfered with. Bush v. Lucas, 462 U.S. 367, 383(1983). In 1971, however, the Postal Service directedthat the Congressional Liaison Office be the sole voice ofthe Postal Service in communicating with the Congressand ordered employees to immediately cease [any] di-rect or indirect contacts with congressional officers onmatters involving the Postal Service. Govt Accountabil-ity Office,Department of Health and Human ServicesChief Actuarys Communications with Congress5 (2004)(B-302911). The Postmaster General dismissed objec-tions that the directive violated the Lloyd-LaFollette Act,

urging that employees could petition Congress abouttheir own matters, but that he would have to have con-trol of matters concerning the Postal Service. Ibid.Unsatisfied, Congress barred the use of appropriatedfunds to pay the salary of any postal official who prevent-ed an employee from communicating with Congress. Id.at 4-6. As the legislations sponsor observed, the lawthat this amendment attempts to enforce has been on thebooks * * * since 1912. Id. at 6.

2. In the 1980s, the Department of Defense sought to

silence whistleblower Ernie Fitzgerald by having himsign an agreement not to disclose classifiable (not clas-sified) information without authorization. 160 Cong. Rec.S2366 (Apr. 10, 2014) (Sen. Grassley). The agreementwould have barred even disclosures to Congress, hinder-ing oversight over defense procurements (and likely vio-lating the Lloyd-LaFollette Act). Ibid. Congress againresponded swiftly. It enacted an anti-gag ridernowcodified in the WPAmaking agency non-disclosureagreements unenforceable unless they expressly statethat they do not alter employees rights relating to(among other things) communications to Congress and


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other whistleblower protection. 5 U.S.C. 2302(b)(13);see2012 Senate Report16-17.

3. Agencies charged with defining whistleblowerprotections have failed to do so. In the CSRA, Congressprotected FBI whistleblower disclosures made to the At-torney General or his designate, but not those made tothe public. CSRA 101(a), 92 Stat. 1117 (5 U.S.C. 2303).Congress directed the Attorney General to prescriberegulations to ensure that reprisals do not occur, anddirected the President to provide for enforcement mech-anisms consistent with those available to other whistle-blowers. Ibid. But nothing happened to implement thoseprotections for nearly20 years.

The Justice Department was finally impelled to act byFrederic Whitehurst, who made repeated disclosures toCongress and the Inspector General regarding the FBICrime Lab. In 1996, Whitehurst brought suit to requirethe Attorney General to develop the anti-retaliation regu-lations the CSRA required. But he was suspended inJanuary 1997without any regulations outlining how hecould appeal that decision. See Activities of the Federal

Bureau of Investigation: Hearing Before the Subcomm.on Crime of the H. Comm. on the Judiciary, 105th Cong.(May 13, 1997) (statement of Dr. Frederic Whitehurst,through his attorney Stephen M. Kohn), http://fas.org/irp/congress/1997_hr/h970513w.htm; R. Suro & P. Thom-as, FBI Suspends Internal Critic of Its Crime Lab Pro-cedures, Wash. Post, Jan. 28, 1997, at A11, http://www.washingtonpost.com/wp-srv/national/longterm/oklahoma/stories/ok012897.htm. Not until the Inspector Generalissued a report substantiating Whitehursts allegations

resulting in significant public pressure on the FBI andJustice Departmentdid the Executive Branch takesteps to prescribe the regulations mandated 20 years ear-


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lier. See U.S. Dept of Justice, Office of Inspector Gen-eral, The FBI Laboratory: An Investigation into Labor-atory Practices and Alleged Misconduct in Explosives-

Related and Other Cases (Apr. 1997), http://www.justice.gov/oig/special/9704a; Delegation of Responsibilities Con-cerning FBI Employees Under the Civil Service ReformAct of 1978, 62 Fed. Reg. 23,123 (Apr. 17, 1997).9

4. One of the most sobering examples of agencyoverreach is the TSAs experience with its SSI regime. A2014 House Oversight and Government Reform Commit-tee investigation found significant problems with TSAsapplication of the SSI designation, with TSA officialssometimes choosing to release information the SSI Of-fice determined to be sensitive security information whilein other instances refusing to release potentially embar-rassing information the SSI Office did not consider tomerit the SSI designation. Pseudo-Classification Re-

port 12. SSI, the investigation concluded, was labeled ina seemingly arbitrary manner, making it easy for Ad-ministrators to play politics with sensitive information.

Id.at 22.

The former director of the TSAs SSI Office, AndrewColsky, described extreme pressure to mark as SSI in-formation that was either embarrassing or was some-thing that they just didnt want the other side to know.

Pseudo-Classification Report12. Conversely, there wassurprising willingness to release information about thepresence of air marshals on flights: [W]henever therewere any events that were newsworthy and dealt with an

9In October 2012, President Obama ordered the Attorney General to

submit, within 180 days, a report assessing the existing FBI whistle-blower regulations and proposing any necessary revisions. Presi-dential Policy Directive 19, E, at 5 (Oct. 10, 2012). The report wasfinally delivered June 2, 2014.


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airline, Public Affairs would be in touch with the newsmedia and couldnt wait to tell them * * * there were airmarshals aboard * * * or this is a regular route that airmarshals fly or air marshals * * * never travel alone. Id.at 17. Eventually, Colsky refused to sign court docu-ments confirming SSI decisions because he did notknow what to honestly call SSI anymore. Id.at 18.

The investigation did find some recent improvements.Pseudo-Classification Report 28-29. But whats past isprologue. History is liable to repeat itself at agenciesthat have not been subject to the same scrutiny. TheTSAs troubling experience aptly illustrates why Con-gress chose not to condition whistleblower protections onagency discretion.

* * *

The WPAs basic premise is that agencies do not al-ways act responsibly. Congress needs whistleblowers toexpose misconduct and keep agencies in check. Whistle-blowers, in turn, need protection from agencies dis-pleased with having their shortcomings exposed. TheDepartments interpretation would turn that regime up-side down. It would grant agencies unprecedented powerto decide when employees may expose misconductpower that is prone to abuse. Nothing in the WPAs text,structure, history, or purpose suggests that Congressintended to facilitate such agency overreach. To the con-trary, Congress sought to restrain agencies. The De-partments interpretation would defy that mandate.

CONCLUSION

The Federal Circuits judgment should be affirmed.


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Respectfully submitted.

ROBERT K.KRYCounsel of Record

LUCAS M.WALKERMOLOLAMKEN LLPThe Watergate, Suite 660600 New Hampshire Ave., NWWashington, D.C. 20037(202) [email protected]

Counsel for Amici Curiae

September 2014