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Tully Rinckey PLLC Prepares SCOTUS Amicus Curiae Brief on DHS v. MacLean


Firm Helps BIG, ESFLEA and FLEOA Fight Agency Efforts to Weaken Whistleblower Protections

October 17, 2014 – Washington, D.C. – Aiming to bolster whistleblower protections in the federal sector, Tully Rinckey PLLC has prepared, on the behalf of three reputable organizations, an amicus curiae (“friend of the court”) brief on DHS v MacLean. The amici – Blacks in Government (BIG), the Emerald Society of the Federal Law Enforcement Associations (ESFLEA), and the Federal Law Enforcement Officers Association (FLEOA) – filed the brief filed before the U.S. Supreme Court “to thwart what could be a dangerous and irresponsible attempt by the Petitioner, DHS, to erode and eviscerate the sound policies that gave rise to the Whistleblower Protection Act.” Tully Rinckey PLLC Founding Partner Mathew B. Tully is identified in the brief as “counsel of record.”

The amicus curiae brief mostly focuses on statutory interpretation and the legislative history of the Whistleblower Protection Act and its predecessor, the Civil Service Reform Act. In preparing the brief, attorneys at Tully Rinckey PLLC – one of the nation’s largest federal employment law firms – conducted extensive legal research and combed through thousands of pages of congressional records, hearings, mark-ups, and other documents to develop persuasive arguments in support of the respondent, Robert J. MacLean.

“DHS v. MacLean is the first case the Supreme Court will hear on federal whistleblowing, so it is of significant importance to not just Mr. MacLean, but to all federal employees,” said Mr. Tully. “A ruling in favor of DHS would put a chill on any federal employees desire to disclose waste and abuse, and provide agencies with a greater ability to retaliate.”

In the brief, the amici make the following arguments:

  1. The whistleblower protection act is clear on its face and any doubt is erased by the legislative history which supports the contention that the “specifically prohibited by law” proviso does not encompass regulations;
  2. DHS’ contentions place at risk the prospective whistleblower’s right to notice of whether his or her disclosures will be protected;
  3. Mr. MacLean was justified in going to the press immediately, but voluntarily complied with the internal complaint process even though he was not obligated to do so under the WPA; and
  4. DHS is wrong to assume that Congress did not consider any perceived harm or potential impact of disclosures.

Mr. MacLean was serving as a Federal Air Marshal (FAM) with the Department of Homeland Security when he received a text message indicating the department’s decision to reduce FAM assignments to certain flights, just days following a security alert indicating a heightened threat of terrorism. After exhausting all internal agency avenues to address his concerns regarding the department’s decision to reduce security coverage for the travelling public at such a critical juncture, Mr. MacLean exercised his right to report the matter to the media. In retaliation for Mr. MacLean’s blowing the whistle, the department removed him from federal service and in doing so, ex post facto designated the matter disclosed as sensitive security Information. DHS v MacLean is set for argument before the U.S. Supreme Court on Tuesday, November 4, 2014.

Click the below image to view the amicus curiae brief.


To speak with Mathew B. Tully, or for more information, please contact Shaun May at (202) 375-2238 or at


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