Robert Mac Lean - Members of Congress Conduct Investigation of Congress' 1989 Intent and File Motion With The Merit Sy

Members of Congress Conduct Investigation of Congress' 1989 Intent and File Motion With The Merit Sy

On April 12, 2011, Congressman Dennis Kucinich and Congresswoman Carolyn B. Maloney filed an amicus curiae ("friend of the court") brief with the U.S. Merit Systems Protection Board in favor of Robert MacLean.

Their offices conducted an investigation and discovered that during Congress' debate prior to passing the Whistleblower Protection Act of 1989 (the current federal whistleblower protection law in effect) it had specifically removed language in the bill that canceled out whistleblower protections for employees who make disclosures that violate executive agency "rule or regulation"—the TSA retroactively marked MacLean's July 2003 disclosure as "Sensitive Security Information (SSI)." SSI is a TSA unclassified marking governed in its Code of Federal Regulations (CFRs). After Congress removed "rule or regulation," the final bill signed into law only barred disclosures that violated law. This motion is significant because it proves that Congress had clear intent it wanted to prevent executive agencies from using their own secrecy regulations to retaliate against whistleblowers:

When the bill, S. 2640, was originally introduced in the Senate, Section 2302(b)(8)(A) excluded protection for public disclosures that were in violation of "law, rule or regulation." After discussion and debate, restrictions on protection due to violations of "rule or regulation" were removed by the Senate, so that restrictions imposed by an agency itself could not circumvent the employee's rights. S. Rep. No. 95-969, 95th Cong., 2d Sess., 12 (1978), reprinted in 1978 U.S. Code & Admin. News 2723, 2743 ("Senate Report"); Vaughn, Statutory Protection of Whistleblowers in the Executive Branch, 1982 U. Ill. L.R. 615, 629. The version passed by the Senate excluded whistleblower protection only for disclosures that were prohibited by "statute."

. . .

After discussion and debate, "rule or regulation" was deleted by the House, just as it had been deleted by the Senate, and the version passed by the House excluded whistleblower protection only for disclosures that were prohibited by "law." The House Conference Report explained exactly what the House intended by its deletion of "rule or regulation" and what the House meant by "prohibited by law:"(Emphasis added)

"Prohibited by law refers to statutory law and court interpretations of those statutes ... not ... to agency rules and regulations." HR Conf. Rep. No. 95-717, 95th Cong., 2d Sess. 130, reprinted in 1978 USCCAN 2860, 2864 (Emphasis supplied).

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