Argument Recap

Earlier this month, the Federal Circuit heard oral argument in Besanceney v. Department of Homeland Security. In this case, the Federal Circuit reviewed 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. Notably, this case was decided via a summary affirmance the day after oral argument was heard. This is our argument recap.

John Harrington argued for Besanceney. He began by arguing that the Board erred in concluding there were no protected disclosures and with respect to its determination that “a search warrant was justifiable under the circumstances in the investigation.”

One judge asked whether the dispute was not “whether a search warrant was warranted,” but, rather, whether there was any problem with the process of the government “collect[ing] the evidence and then present[ing] it to somebody in the Attorney General’s office, who would then determine whether a warrant was appropriate.” In response, Harrington agreed that “that is the position put forward by TSA, but that is not what happened.” In particular, he explained, “Mr. Besanceney clearly told his supervisors that there was insufficient evidence to obtain a search warrant.”

The argument then shifted to the alleged pressure applied by Besanceney’s supervisors for him to obtain a search warrant. One judge asked how exactly that pressure occurred. In response, Harrington noted how the supervisors instructed Besanceney “to proffer information that there was probable cause for a search warrant.” A judge then pointed out how Besanceney has not “challenged the basic facts that . . . Besanceney was asked to look at video footage for the purposes of collecting evidence to talk to the [Assistant U.S. Attorney] about a search warrant.” Harrington argued in response that “the basic fact at issue here is whether there was probable cause based on the evidence before Mr. Besanceney that would justify a search warrant,” and Besanceney “argued with his supervisors that there was not.”

Harrington also argued the judge below “made a legal error in determining that Mr. Besanceney had not specifically identified a particular law or rule or regulation,” because, Harrington argued, Besanceney was not required to identify any such law or rule or regulation.

Harrington further asserted “the record presented at the hearing established that” Besanceney “made protected disclosures numerous times to his supervisors in various meetings.” He explained how, “although Mr. Besanceney’s supervisors backed off and told him to go back and look at this again, they had initially pressured him to get the search warrants and doing so would have required him to provide a false affidavit that there was” evidence justifying a search warrant.

Jana Moses argued for the government. She began by contending that “Besanceney cannot convincingly argue that he reasonably believed that his disclosures were evidence of agency wrongdoing.” She pointed out how the disclosures in question were disputes over “investigative strategy,” which are “explicitly excluded from the definition of a protected disclosure” under the relevant statute. She also argued “disclosures concerning a supervisor’s discretionary decisions” that are then “challenged by subordinates are not protected under the statute.”

Moses agreed with a point made in an amicus brief filed in this case, in particular that a complaint to the Office of Inspector General “would be a protected activity under the statute and that the reasonable belief test that the Board applied is not applicable.” She argued, however, that “this is not grounds for reversal” because “Besanceney cannot show that the outcome of his appeal would have been different had the Board applied the correct standard.”

Moses then maintained that, “after reading the record, one is left with the impression that Mr. Besanceney is exaggerating the significance of an entirely ordinary situation.” She argued “he and his supervisors disagreed about how they would pursue the baggage theft investigation.” And, she continued, “healthy discourse certainly is appropriate, especially in a law enforcement agency.”

In rebuttal, Harrington argued that, “clearly, there was a policy disagreement here about the best course to take in the investigation, but, as we have argued, we believe there was also a protected disclosure involved.” He maintained these two circumstances, however, “are not mutually exclusive.”

Notably, as mentioned, this case was summarily affirmed the day after the oral argument.