Hogan Lovells' Neal Katyal Secures Landmark Victory Before Supreme Court in MacLean Whistleblower Case

WASHINGTON, D.C. 21 January 2014 – Hogan Lovells is pleased to announce that Appellate Practice Co-Head Neal Katyal secured a landmark victory before the Supreme Court for former federal air marshal Robert J. MacLean, a pro bono client. Appellate associate Austin Bonner assisted Katyal with the case. Katyal, who has argued 24 cases at the high court, gave his oral argument in the case in November, and quickly followed that over the next two months with two other arguments at the Court and second-seating partner Dominic Perella in his own Supreme Court debut.

In 2003, MacLean learned that the U.S. Department of Homeland Security (DHS) planned to remove air marshals from long distance flights despite an imminent hijacking threat. When DHS refused to correct the problem, MacLean turned to the media. DHS ultimately reversed itself after a congressional uproar, but the agency still fired MacLean. The Federal Circuit ruled that MacLean was eligible for federal whistleblower protections because his disclosure was not specifically prohibited by law. The Obama administration took the appeal to the Supreme Court, arguing that this ruling opened the door to leaks that threaten public safety and that the disclosure was prohibited by agency regulations.

This 7-2 decision marked a rare victory for government whistleblowers. Chief Justice Roberts, writing for the majority, reaffirmed the common sense idea that agencies should not be able to write regulations to exempt themselves from the Whistleblower Protection Act.

“Today’s decision is an important victory for whistleblowers everywhere, and of course in particular for Robert MacLean. More than that, it’s a victory for all Americans, who depend on federal employees to warn them of bureaucratic errors that endanger our security,” said Katyal. “The Court reaffirmed the common sense idea that agencies cannot hide their mistakes by regulating their way to try to evade the Whistleblower Protection Act. Today’s decision ensures that the Whistleblower Act will continue to stand as an important bulwark against government abuse.”

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