Oral arguments in U.S. Department of Homeland Security v. MacLean, an important whistleblower case, indicate that the U.S. Supreme Court will reject the government's efforts to weaken the Whistleblower Protection Act of 1989.
This expert analysis by TELG managing principal R. Scott Oswald was published by Law360 on November 4, 2014. The full article is available at Law360. (Site requires paid subscription.)
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Here’s the problem with telling the justices of the U.S. Supreme Court that they’re wrong: They always get the last word.
And the last word in U.S. Department of Homeland Security v. MacLean — based on today’s oral arguments in the case, at least — now seems likely to be a rejection of the Obama administration’s contention that federal agencies may strip employees of their rights under the Whistleblower Protection Act of 1989 simply by issuing regulations that forbid certain types of disclosure.
U.S. Deputy Solicitor General Ian H. Gershengorn, who argued on behalf of the DHS, faced withering criticism as he argued that the Bush-era DHS was entitled to punish Robert MacLean, a former air marshal, for leaking his concerns about airline flight safety, even though the WPA forbids retaliation against whistleblowers — and even though the department ultimately agreed that MacLean’s concerns were legitimate.
