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Whistleblower gets to return to the MSPB

Legal disputes are often a game of inches. People often misunderstand how court opinions read, and fail to grasp that when a court upholds or overturns a lower court ruling, it may not be ruling on the substantive issue that caused the lawsuit in the first place, but instead, may only be ruling on one procedural element of the overall case.

Such was the recent victory in the U.S. Supreme Court for a former air marshal who was fired by the department of Homeland Security (DHS). The Court did not order that he be reinstated to his position as air marshal, which is his goal. But what it did is an important and essential step in his reaching that reinstatement.

The Court ruled that he was eligible for protection under the Whistleblower Protection Act (WPA). He was fired after he first complained to his supervisors that a move by DHS that would remove air marshals from international flights would threaten the public's safety in the face of, at the time, recent warnings regarding hijacking of aircraft.

When his managers refused to act, he brought the matter to the attention of Congress and the news media. He was fired for reveling "sensitive security information," which the agency argued was prohibited by law.

This is important because, the release was only prohibited by agency regulations. For whistleblowers, the distinction is critical. If the agencies interpretation had been upheld, every agency would create regulations that would effectively prohibit any actions that would amount to whistleblowing.

This would entirely frustrate the purpose of the WPA, and leave federal employees subject to adverse actions by their agency when they attempted to do the right thing.

The Court's ruling means he can now return to the Merit Systems Protection Board (MSPB) to argue that he should be reinstated.

The Washington Post, "High court protects federal whistleblowers in case that had broad implications," Joe Davidson, January 22, 2015

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