whistleblower

Department of Homeland Security v. MacLean

Issues

Does the Whistleblower Protection Act bar an agency from taking enforcement action against an employee who violated one of the agency’s regulations?

The Supreme Court will address whether employees may violate government agency regulations without losing their rights under the Whistleblower Protection Act (“WPA”). The Court’s decision will clarify whether certain regulations have the force and effect of law under the WPA, which will, in turn, influence the extent to which employees will be willing to disclose information involving perceived government missteps. The Department of Homeland Security argues that violations of legislatively mandated regulations are unprotected under the WPA. MacLean contends, however, that an agency regulation is not an exception to the WPA, and thus disclosures that violate an agency regulation are still protected under the WPA.

Questions as Framed for the Court by the Parties

Congress has directed that the Transportation Security Administration “shall prescribe regulations prohibiting” the “disclosure of information obtained or developed” in carrying out certain transportation security functions, if the agency “decides” that “disclosing the information would * * * be detrimental” to transportation security. Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101(e), 115 Stat. 603; Homeland Security Act of 2002, Pub. L No. 107-296, Tit. XVI, § 1601(b), 116 Stat. 2312. Such information is referred to in the regulations as “Sensitive Security Information.” See, e.g., 67 Fed. Reg. 8351 (Feb. 22, 2002).

The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

In 2001, Respondent Robert J. MacLean became a Federal Air Marshal (“Air Marshal”). See MacLean v. Dep't of Homeland Sec., 714 F.3d 1301, 1304 (Fed. Cir. 2013).

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Edited by

Acknowledgments

The authors would like to thank Professors Cynthia Farina and Aziz Rana of Cornell Law School for their insights into this case.

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Murray v. UBS Securities, LLC

Issues

Does a plaintiff bringing a claim for retaliation under §1514A of the Sarbanes-Oxley Act of 2002 bear the burden of establishing the employer acted with retaliatory intent, or must the defendant employer demonstrate a lack of retaliatory intent as part of its defense?

This case asks the Supreme Court to clarify whistleblowers’ evidentiary burden when they allege retaliation for conduct protected under the Sarbanes-Oxley Act of 2002. Petitioner Trevor Murray argues that he does not need to prove retaliatory intent to establish a claim against his employer because the language of §1514A and the statutory and administrative precedent establish that the protected activity only needs to be a contributing factor in the adverse personnel action. Respondent UBS argues that employees should be required to prove that their employers acted with retaliatory intent in their initial complaints because the texts of the statute and statutory precedent reflect Congress’s intention to create an intent element. The outcome of this case will determine the amount of proof required for whistleblowers to prove retaliation for protected activities.

Questions as Framed for the Court by the Parties

Whether, following the burden-shifting framework that governs cases under the Sarbanes-Oxley Act of 2002, a whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or whether the lack of “retaliatory intent” is part of the affirmative defense on which the employer bears the burden of proof.

In 2011, Respondent UBS Securities, LLC hired Petitioner Trevor Murray as a strategist, a role that required him to certify that his reports “accurately reflected his own views” and that his compensation was not tied to his views. Murray v.

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Rockwell International Corp. v. U.S.

Issues

Did the Tenth Circuit incorrectly decide in favor of a whistleblower on the basis of a lenient construction of the False Claims Act’s definition of an “original source”?

 

The federal False Claims Act permits private citizens and company employees, known as relators, to bring suit in the name of the United States (known as a qui tam suit) against a corporation that has committed fraud against the government, and to share in any judgment thereon. James Stone, a former engineer for Rockwell International, brought a qui tam suit against Rockwell for environmental health and safety violations at the Rocky Flats weapons facility. However, Rockwell claimed that Stone was ineligible to bring suit because the knowledge he had was not sufficiently “direct and independent” to qualify him as an “original source” under the statute. The Supreme Court’s decision in this case will resolve a split among the circuit courts regarding precisely what level of “direct and independent knowledge” a potential qui tam plaintiff must have to qualify as an original source. The Court’s decision will ultimately affect any business that contracts with the federal government or participates in government programs, and could make it either substantially easier or more difficult for potential whistleblowers to bring suit under the False Claims Act.

Questions as Framed for the Court by the Parties

Whether the Tenth Circuit erred by affirming the entry of judgment in favor of a qui tam relator under the False Claims Act, based on a misinterpretation of the statutory definition of an “original source” set forth in 31 U.S.C. § 3730(e)(4)?

The Rocky Flats weapons production facility, near Denver, Colorado, manufactured plutonium triggers for nuclear weapons from 1953 to 1988. Between 1975 and 1989, Petitioner Rockwell International operated the site for the U.S. Department of Energy (DOE) under a Management and Operating contract. See U.S. v.

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