2011-3231

United States Court of Appeals for the Federal Circuit

ROBERT J. MACLEAN, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Petition for Review of the Merit Systems Protection Board in Case No. SF0752060611-1-2.

RESPONSE TO RESPONDENT DEPARTMENT OF HOMELAND SECURITYS COMBINED PETITION FOR PANEL REHEARING OR REHEARING EN BANC
LAWRENCE A. BERGER MAHON & BERGER 70 Glen Street Suite 280 Glen Cove, NY 11542 (516) 671-2688 Fleoaatty@aol.com THOMAS DEVINE LEGAL DIRECTOR GOVERNMENT ACCOUNTABILITY PROJECT 1612 K Street, NW, Suite 1100 Washington, DC 20006 (202) 457-0034 tomd@whistleblower.org Counsel for Petitioner AUGUST 14, 2013
COUNSEL PRESS, LLC (202) 783-7288 * (888) 277-3259 249060

CERTIFICATE OF INTEREST Counsel for Petitioner, Robert J. MacLean, certifies the following (use None if applicable; use extra sheets if necessary): 1. The full name of every party or amicus represented by me is: ROBERT J. MACLEAN 2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is: N/A 3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are: N/A 4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are: Mahon & Berger Lawrence Berger Thomas Devine Government Accountability Project

TABLE OF CONTENTS Page CERTIFICATE OF INTEREST ................................................................................ i TABLE OF AUTHORITIES ................................................................................... iii STATEMENT ............................................................................................................1 ARGUMENT AGAINST REHEARING ..................................................................4 A. B. C. D. The panel properly applied explicit statutory language ..................................4 The panel properly applied legislative history ................................................5 DHS arguments based on the FOIA reinforce the Panels decision ..............7 The Panels decision is consistent with the WPAs purpose and corresponding public policy considerations ..................................................11

CONCLUSION ........................................................................................................14 CERTIFICATE OF SERVICE ................................................................................15

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TABLE OF AUTHORITIES Page(s) Cases Am. Jewish Cong. v. Kreps, 574 F.2d 624 (D.C. Cir. 1978) .......................................................................10 C.I.A. v. Sims, 471 U.S. 159 (1985).....................................................................................6, 8 FAA v. Robertson, 422 U.S. 255 (1975).........................................................................................9 Iron and Sears v. Dann, 606 F.2d 1215 (D.C. Cir. 1979).....................................................................10 Sciba v. Bd. of Governor of the Fed. Reserve Sys., 2005 U.S. Dist. LEXIS 6007 .........................................................................10 Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) .....................................................................12 WISCONSIN PROJECT v. UNITED STATES DOC, 317 F.3d 275 (D.C. Cir. 2003) .................................................................. 9, 10

Statutes 5 U.S.C. 2302(b)(8)....................................................................................... passim 49 U.S.C. 1504 ........................................................................................................9 49 U.S.C. 40119(b)(1) ........................................................................................2, 8 49 U.S.C. 40119(b)(3) ...........................................................................................12

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Other Authorities H.R. Rep. No. 94-880, pt. 1, at 23 (1976), reprinted in 1976 U.S.C.C.A.N. 2183, 2204-05 ..................................................................................................9 S. Rep. No969, 95th Cong., 2d Sess. (1978), reprinted in 1978 W.S.C.C.A.N. 2723, 2743-44 .................................................................................................. 7 Regulations 75 Fed. Reg. 68 ..........................................................................................................5

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STATEMENT Pursuant to the Courts July 31 request, Mr. MacLean responds to Respondent Department of Homeland Securitys Combined Petition for Panel Rehearing and Rehearing En Banc. (DHS Pet.) The context for this case was a public whistleblowing disclosure that led to correction of a mistake by the Transportation Security Administration. (TSA) If left uncorrected, the mistake would have left America without Federal Air Marshal (FAM) coverage during what was confirmed as a planned, more ambitions Al Qaeda hijacking attack than occurred on 9/11. The issue on appeal is whether FAM Robert MacLeans public disclosure of the mistake exceeded his rights under 5 USC 2302(b)(8) in the Whistleblower Protection Act (WPA), or whether he is eligible for coverage. After failing through internal protests, Mr. MacLean publicly disclosed unmarked, visually unrestricted orders to cancel FAM coverage, in violation of agency Sensitive Security Information regulations forbidding public release of SSI. Mr. MacLeans disclosure exposed and challenged the mistake removing FAM coverage, leading to immediate corrective action. Despite his contribution to preventing the attack, DHS terminated Mr. MacLean breaching national security by releasing SSI.

Mr. MacLean incorporates the Department of Homeland Securitys (DHS) summary of administrative proceedings below. (DHS Pet) at 3-4. Upon appeal, the Panel reversed the Merit Systems Protection Board (MSPB or Board) decision below, and held that Mr. MacLeans disclosure was not specifically prohibited by law within the meaning of the Whistleblower Protection Act. (WPA) The Panel remanded the case for further proceedings on other elements of the statute, particularly whether Mr. MacLean reasonably believed that the contents of his disclosure evidenced a substantial and specific danger to public health or safety. Slip Op. at 15. The Panel based its decision on resolution of three issues. The first is that prohibitions on public whistleblowing disclosures must come from a law, which means that authority to prohibit public releases must derive from statute, rather than from an agency determination through discretion and regulations. The Panel explained that the controlling statutory provision of the Aviation Transportation Security Act (ATSA), 49 U.S.C. 40119(b)(1), did not contain a specific statutory prohibition banning employee disclosures, but rather a statutory provision providing an agency leader absolute discretionary authority to ban releases generally -if the Secretary decides disclosing the information would be detrimental to [transportation] safety. 49 U.S.C. 40119(b) (emphasis added [in opinion]) Thus, the ultimate source of prohibition of Mr. MacLeans

disclosure is not a statute, but a regulation, which the parties agree cannot be law under the WPA. Slip Op. at 11-12. Second, the Panel enforced the specificity requirement of 2302(b)(8) by holding that generalized criteria to restrict disclosure are insufficient. In addition to explicit statutory language, it tracked legislative history and traced precedents applying the boundary for public WPA disclosures to conclude that the ATSA guidance does not specifically prohibit employee conduct within the meaning of the WPA. Sip op. at 12. It recognized legislative history that permits flexibility in the specificity requirement by accepting a statute which establishes particular criteria for withholding or refers to particular types of matters to be withheld. Under those circumstances, the Panel agreed that regulations could suffice to implement the congressional ban. But it concluded that the ATSA guidance does not describe specific matters to be withheld. It provides only general criteria for withholding information . Id. at 12-13 Finally, the Panel rejected DHSs public policy argument that if the WPA overrides agency SSI regulations, it will be unable to control releases of information threatening to national security. It explained that those objectives can be maintained through controls on release of non-whistleblowing information, including denial of routine public disclosure under the Freedom of Information Act. (FOIA) Id. at 14-5 3

ARGUMENT AGAINST REHEARING DHS does not contest the Panels first holding, that SSI rules implementing the ATSA cannot be a prohibition by statutory law, because all relevant authority to restrict public disclosures comes from the Secretarys judgment through regulations, instead of from an explicit statutory ban. Nor does it challenge legislative history that expert discretion to implement congressional-based restrictions on employee disclosures must reflect specific statutory guidance which establishes particular criteria for withholding or refers to particular types of matters to be withheld. DHS Pet. at 9 (citation not included) These are the core principles underlying the Panels decision. Responses to the objections DHS raised are below. A. The panel properly applied explicit statutory language. DHS argues that the Panel went too far by eliminating agency discretion where Congress intends to restrict disclosures, as evidenced by agency delegation permissible in 2302(b)(8) under Executive Order 13,256 for control of classified information. It contends that [t]he Panel applied an overly formalistic framework. DHS Pet. at 7, and 6-9 generally To the contrary, the Panel merely recognized and enforced unequivocal statutory language with as much flexibility as permitted by Congress. There is no discretion in 2302(b)(8) for authority solely through agency regulations to

prohibit employees from public disclosures. The statutory language is clear: authority for prohibitions on public whistleblowing disclosures only can come from Congress, not through agency regulations. DHSs failure to contest the panels holding to that effect defeats its objection. DHSs asserted precedent, that 2302(b)(8)(A) permits agency discretion for control of classified information under E.O.13,526, is inapposite and selfdefeating. The Executive Order controls classified information, which is a separate category for restraint compared to information whose public release is specifically prohibited by law. It demonstrates that when Congress wanted to provide an exception to the requirement for statutory control of whistleblowing disclosures, it did. There is no analogous exception for Sensitive Security Information. To the contrary, currently under a 2010 Executive Order SSI no longer even is relevant as a limitation on disclosures under the WPA or related laws. 1 B. The panel properly applied legislative history. DHS contends that the Panel erred, because it failed to reference WPA legislative history approval of National Security Act of 1947(NSA) provisions for agency protection of sources and methods of intelligence. DHS argues that the SSI is one form of Controlled Unclassified Information (CUI), now governed by E.O. 13556 of November 4, 2010, 75 Fed. Reg. 68,675-76 (daily ed. Nov. 9, 2010) Section 2(b) provides, The mere fact that information is designated as CUI shall not have a bearing on determinations pursuant to any law requiring the disclosure of information or permitting the disclosure of information as a matter of discretion, including disclosures to the legislative and judicial branches. 5
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Panel failed to recognize this WPA legislative history approval of agency discretion to enforce statutory standards, including statutory restrictions on release of particular categories or types of information prescribed by Congress. It concludes that discretion is permitted for those categories. DHS Pet. at 9-10. Again DHS cited an inapposite precedent. The reference to NSA authority to protect sources and methods reflects the E.O. 13,526 classified information provisions in Section 1.4(c) that prohibit disclosure of sources or methods of intelligence. The legislative history reference was necessary for consistency with the separate WPA exception for classified information under E.O. 13,526, rather than serving as a precedent for restrictions by any agency on disclosures of unclassified information. 2 More significant, DHS misses the point. The Panel did not hold, nor is it in dispute, that agency discretion is permissible to implement congressional authority restraining disclosures. The issue is the degree of congressional specificity DHS also projects indirect authority here to create legislative history that does not exist. It cites to Supreme Court FOIA precedent, C.I.A. v. Sims, 471 U.S. 159, 17475 (1985), that under the NSA the Central Intelligence Agency (CIA) Director has broad discretion to protect sources and methods of intelligence, concluding that is the same as a mandate of broad discretion for any agency to restrict employee disclosures. DHS Pet. at 10-11 Even if sources and methods were not sufficiently specific categories per se, the precedent is not relevant to and is not referenced in the Senate Report as asserted by DHS. Sims concerns the FOIA, and emphasizes the importance of the CIA Directors discretion to protect classified information. Again, DHSs only specific authority is inapposite to prove broad discretion by all agency heads to restrict public whistleblowing of unclassified information when Congress has not banned its disclosure with specificity. 6
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required to control exercise of that discretion. Congress must provide particular, or specific, guidance. DHS ignores the legislative history conclusion that it emphasized the NSAs reference to sources and methods of intelligence qualify as particular types of criteria and matters to be withheld. DHS Pet. at 9, citing S. Rep. No. 969, 95th Cong., 2d Sess. (1978), reprinted in 1978 W.S.C.C.A.N. 2723, 2743-44. Most fundamental, DHS passively concedes the Panels ultimate conclusion of law interpreting WPA legislative history. DHS does not contest that congressional general criteria for agencies to restrict public disclosures cannot meet the threshold of statutory specificity required by 2302(b)(8) to prohibit public disclosures. As seen above, its defenses of agency discretion and controls on sources and methods of intelligence will not elevate the ATSA criterion of detrimental to agency security from a general to a specific statutory prohibition. Having conceded the rule of law, DHS has not presented a credible challenge based on the record. C. DHS arguments based on the FOIA reinforce the Panels decision. DHS insists that the ATSA guidance is sufficiently specific for the WPA, because it is analogous to SSI that generally can be withheld under the FOIA despite identical specificity criteria. It relies heavily on FOIA precedents permitting agency denial of SSI. DHS adds that the NSAs authority to protect sources and methods also permits denial of FOIA requests. DHS Pet. at 11-14 7

Again the agencys argument is inapposite, because it is based almost entirely on FOIA litigation which upheld SSI withholding. The Panel properly distinguished FOIA exemptions from WPA controls on disclosure, Slip Op. at 1415. Further, ATSA authority to withhold documents broadly cannot be generalized to other releases under Exemption 3, because that statute provides explicit authority to withhold any SSI despite the FOIA. 49 U.S.C. 40119(b)(1) permits withholding of information [n]otwithstanding section 552 of title 5. This illustrates that Congress can specify exceptions to disclosure statutes when it so intends. There is no ATSA Whistleblower Protection Act exception in 40119(b)(1), as there is for the FOIA. The Panel properly declined to add one. As seen above, the CIA Directors authority to protect sources and methods of intelligence is not relevant for this proceeding. Further, the same authority cited by DHS, C.I.A. v. Sims, 471 U.S. at 167, added, Section 102(d)(3) of the National Security Act of 1947, which calls for the Director of Central Intelligence to protect "intelligence sources and methods," clearly "refers to particular types of matters . As discussed above, this is consistent with WPA legislative history. The ATSA general criteria do not achieve that minimum. When considered in context, again DHSs objection actually reinforces the Panels holding. DHSs analogy to FOIA Exemption 3 is based on resurrecting a doctrine that Congress legislatively has overturned. A proper analysis of Exemption 3 reinforces the Panels conclusion that ATSA guidance does not qualify as a prohibition on disclosing particular categories or types of information. 8

The doctrine asserted by DHS is outdated. In 1976 Congress imposed the requirement for particular types or criteria of information in Exemption 3 to overrule a Supreme Court ruling upholding a standard even more specific than the ATSA. In a reverse FOIA case, FAA v. Robertson, 422 U.S. 255, 266-67, the Supreme Court held that Exemption 3 covered language in 1104 of the Federal Aviation Act of 1958, 49 U.S.C. 1504 when, in [the Administrators] judgment a disclosure of such information would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. 422 U.S. at 257, n.4.The judgment call in the FAA Act was strikingly similar to but modestly narrower than the ATSA discretion. Concerned that Robertson afforded the FAA Administrator carte blanche to withhold any information he pleased, Congress overruled the decision and narrowed Exemption 3 by adding subsections (A) and (B) [that require statutory reference to particular types criteria of information]. WISCONSIN PROJECT v. UNITED STATES DOC, 317 F.3d 275, 280 (D.C. Cir. 2003), citing H.R. Rep. No. 94-880, pt. 1, at 23 (1976), reprinted in 1976 U.S.C.C.A.N. 2183, 2204-05. Since the 1976 amendments, case law interpreting Exemption 3 in the absence of a specific FOIA carve-out has held that to be sufficiently particular the statutory guidance for withholding must maintain congressional control of discretionary judgments. To qualify as a particularized withholding provision, a statute must be the product of congressional appreciation of the dangers inherent in airing particular data and must "incorporate[] a formula whereby the 9

administrator may determine precisely whether the disclosure in any instance would pose the hazard that Congress foresaw. WISCONSIN PROJECT, 317 F.3d at 278, quoting Am. Jewish Cong. v. Kreps, 574 F.2d 624, 628-29 (D.C. Cir. 1978) Exemption 3s controlling principle has been that Congress, not the agencies of the Executive Branch, determine the need for nondisclosure.Congress intended exemption from the FOIA to be a legislative determination, and not an administrative one. Id., at 280 Exemption 3 is available when Congress had itself made the basic decision, and had left to the administrator only the task of implementation. Am. Jewish Cong., supra, 574 F.2d at 630 See also Iron and Sears v. Dann, 606 F.2d 1215, 1220 (D.C. Cir. 1979). See also Sciba v. Bd. of Governor of the Fed. Reserve Sys., 2005 U.S. Dist. LEXIS 6007, slip op at 14 That boundary is crossed when delegation is so generalized that the statute in fact delegate[s] to administrators the entire burden of identifying the problems disclosure might generate. Am. Jewish Cong, supra, 574 F.2d at 629 That is precisely the context for ATSA guidance: the Secretary has total discretion to identify what information jeopardizes transportation security. In short, FOIA standards reinforce, rather than undermine, the Panels decision. Precedents since the 1976 amendments have interpreted Exemption 3 consistent with the Panels assessment of the similar WPA provision.

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D. The Panels decision is consistent with the WPAs purpose and corresponding public policy considerations. DHS argues that the Panels decision eviscerates the Executives ability to carry out [its airlines security] mandate and creates a public safety risk. DHS reasons that since release of any SSI information violates its regulations, then any release must undermine transportation security: when whistleblowers reveal SSI, their disclosures have a negative impact upon the nations security. Id., at 6, 15 DHS does not recognize or respond to reassurances the Panel already has provided for the agencys parade of horribles . 3 Slip Op. at 14 The Panel surveyed a system of controls for denial of normal FOIA releases, and for discipline of employees who disclose SSI for personal gain or due to negligence. Even in a whistleblowing disclosure, employees hardly have a blank check. Whether acting publicly or not, whistleblowers must prove that they reasonably believe their disclosures evidence serious government misconduct that significantly threatens the public -- the remaining issue the Panel assigned for remand before Mr. MacLean can be protected. Id., at 15

By issuing E.O. 13556, the President as Commander in Chief does not agree, either. While the CUI Executive Order was not in effect when Mr. MacLean made his disclosure, it indicates that the danger per se from release of Controlled Unclassified Information such as SSI is de minimus in terms of adverse public policy consequences. Under Section 2(b) liability must be established independently from CUI disclosure. DHS has not alleged that Mr. MacLean engaged in any misconduct other than disclosing SSI to blow the whistle. 11

Most basic, DHS relies on a false premise: if the government says release of information would harm national security, then it would. That assumption fails to consider the possibility of government misconduct or mistake. 4 Congress unanimously has passed Whistleblower Protection Act rights four times based on a principle approved by this court, 5 but not recognized within DHSs analysis: the government makes mistakes, and whistleblowers can be indispensable to correct them. That is precisely what happened here. It is undisputed that the government made a mistake that could have resulted in abandonment of air marshal protection during a far more severe Al Qaeda attack than 9/11. It is undisputed that Mr. MacLeans disclosure contributed significantly to correcting the mistake. It remains whether the record will support that he had a reasonable belief his disclosure evidenced a substantial and specific danger to public health or safety. If he passes that test, however, he is entitled to protection both for the integrity of WPA rights, as well as for successfully defending transportation security from what could have been a disastrous, history changing mistake. As Judge Wallace In 40119(b)(3), the ATSA itself provides that information may not be designated SSI to to conceal a violation of law, inefficiency, or administrative error. While the law of the case is that the unrestricted text message Mr. MacLean disclosed inherently was SSI, on public policy grounds it is relevant that DHS did not formalize its SSI status until after his whistleblowing disclosure exposed and prevented what could have been a disastrous mistake. 5 See, e.g., Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) 12
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stated in his concurring opinion, [T]he facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act. Contrary to DHSs plea, this court should deny rehearing, precisely because its marginal challenges to the Panels ruling do not warrant continued uncertainty about when a whistleblower safely can challenge significant threats to national security caused by government breakdowns. Mr. MacLean recognizes that the distinction is close between general and specific statutory prohibitions on disclosure. But it is clear, both from explicit, unqualified statutory language and from dispositive legislative history. There should not be continued uncertainty over one of the WPAs initial, basic cornerstones: only Congress, with specificity, can restrict the scope of Whistleblower Protection Act free speech rights.

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CONCLUSION

For the foregoing reasons, Mr. MacLean respectfully requests that the Panel reject DHSs Petition for Reconsideration or Rehearing En Banc.
Respectfully submitted, /s/ Lawrence A. Berger Lawrence A. Berger General Counsel Federal Law Enforcement Officers Association MAHON & BERGER 70 Glen Street, Suite 280 Glen Cove, NY 11542 (516) 671-2688 Telephone: 516-671-2688 Facsimile: 516-671-1148 Email: FLEOAatty@aol.com /s/ Thomas Devine Thomas Devine Legal Director Government Accountability Project 1612 K Street, NW, #1100 Washington, DC 20006 Telephone: 202-457-0034, ext. 124 Facsimile: 202-457-0059 tomd@whistleblower.org

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United States Court of Appeals for the Federal Circuit

MacLean v DVA, No. 2011-3231 CERTIFICATE OF SERVICE I, Robyn Cocho, being duly sworn according to law and being over the age of 18, upon my oath depose and say that: Counsel Press was retained by MAHON & BERGER, Attorneys for Petitioner to print this document. I am an employee of Counsel Press. On August 14, 2013, Counsel for Petitioner has authorized me to electronically file the foregoing Repsonse to Petition with the Clerk of Court using the CM/ECF System, which will serve via e-mail notice of such filing to any of the following counsel registered as CM/ECF users: Gaspare J. Bono Stephen M. Chippendale John W. Lomas, Jr. MCKENNA LONG & ALDRIDGE LLP 1900 K Street, N.W. Washington, D.C. 20006 (202) 496-7500 gbono@mckennalong.com schippendale@mckennalong.com jlomas@mckennalong.com Attorneys for Defendant-Appellant ORBIS Corporation Paper copies will also be mailed to the above counsel at the time paper copies are sent to the Court.

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Upon acceptance by the Court of the e-filed document, 19 paper copies will be filed with the Court, via Federal Express, within the time provided in the Courts rules. August 14, 2013 /s/ Robyn Cocho Counsel Press

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