Two cases being argued in July at the Federal Circuit attracted amicus briefs. One of those cases is Besanceney v. Department of Homeland Security. In this case, the Federal Circuit will review a finding by the Merit Systems Protection Board that disclosures made by Besanceney, a criminal investigator for the Transportation Security Administration, were not protected under the Whistleblower Protection Enhancement Act. This is our argument preview.
Besanceney argues in his opening brief that the “Board erred in finding that five disclosures made by Besanceney in relation to [a LaGuardia Airport] baggage theft investigation were not protected disclosures under the [Whistleblower Protection Enhancement Act].” He further contends he “had a good faith belief that” the agents in charge “were violating rules, regulations, and the law when they pressured him to obtain federal search warrants, based on probable cause, when no probable cause existed.” Besanceney asserts the “Board further erred in not considering the prohibited personnel practices taken against Besanceney by TSA or the causal link between those actions and his protected disclosures.”
In its response brief, the government argues the “administrative judge correctly concluded that Mr. Besanceney failed to demonstrate that he made any protected disclosures.” It further contends Besanceney “cannot substitute the board’s judgment with his subjective opinion” with regard to the reasonableness of his beliefs. According to the government, moreover, “Mr. Besanceney cannot demonstrate reversible error in the board’s application of the ‘reasonable belief’ test.”
Besanceney, in his reply brief, contends he, “as the objectively reasonable officer placed in charge of the investigation, did not believe the available evidence created probable cause sufficient to obtain a search warrant.” He argues the “Administrative Judge did not address Besanceney’s reasonable belief or even why he believed he was being recorded.” Furthermore, he says, the Board “erred in not considering the prohibited personnel practices taken against Besanceney by TSA or the causal link between those actions and his protected disclosures.” He lastly maintains the “the Administrative Judge erred in not considering or analyzing whether TSA met its heavy burden to show by clear and convincing evidence that it would have taken the same personnel actions in the absence of Besanceney’s disclosures.”
The U.S. Office of Special Counsel filed an amicus brief in support of the petitioner and reversal. In its brief, it argues “[r]equiring employees to meet the [statutory] threshold for whistleblowing . . . before they can be protected from reprisal for providing information” to an Office of Inspector General “is contrary to the plain text” of the Whistleblower Protection Enhancement Act and “ignores Congressional intent to provide separate protections under each provision.”
This case will be argued on Tuesday, July 11. We will report on any developments.