regulations

Department of Homeland Security v. MacLean

Issues

Does the Whistleblower Protection Act bar an agency from taking enforcement action against an employee who violated one of the agency’s regulations?

The Supreme Court will address whether employees may violate government agency regulations without losing their rights under the Whistleblower Protection Act (“WPA”). The Court’s decision will clarify whether certain regulations have the force and effect of law under the WPA, which will, in turn, influence the extent to which employees will be willing to disclose information involving perceived government missteps. The Department of Homeland Security argues that violations of legislatively mandated regulations are unprotected under the WPA. MacLean contends, however, that an agency regulation is not an exception to the WPA, and thus disclosures that violate an agency regulation are still protected under the WPA.

Questions as Framed for the Court by the Parties

Congress has directed that the Transportation Security Administration “shall prescribe regulations prohibiting” the “disclosure of information obtained or developed” in carrying out certain transportation security functions, if the agency “decides” that “disclosing the information would * * * be detrimental” to transportation security. Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101(e), 115 Stat. 603; Homeland Security Act of 2002, Pub. L No. 107-296, Tit. XVI, § 1601(b), 116 Stat. 2312. Such information is referred to in the regulations as “Sensitive Security Information.” See, e.g., 67 Fed. Reg. 8351 (Feb. 22, 2002).

The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

In 2001, Respondent Robert J. MacLean became a Federal Air Marshal (“Air Marshal”). See MacLean v. Dep't of Homeland Sec., 714 F.3d 1301, 1304 (Fed. Cir. 2013).

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Acknowledgments

The authors would like to thank Professors Cynthia Farina and Aziz Rana of Cornell Law School for their insights into this case.

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Federal Communications Commission v. Consumers’ Research

Issues

Did Congress violate the nondelegation clause when it authorized the Federal Communications Commission (“FCC”) to regulate revenue for the Universal Service Fund, which exists to subsidize access to telecommunications; and, did the FCC unconstitutionally delegate authority to a private entity in the implementation of the Universal Service Fund?

This case asks the Court to determine if Congress’ delegation of authority to the FCC under 47 U.S.C. § 254 was unconstitutional, and whether the FCC’s delegation to a private entity to implement some § 254 provisions was unconstitutional. The FCC argues that the delegation was not unconstitutional because Congress gave the FCC an “intelligible principle” with which to execute the statute. The FCC further contends that it only used a private entity for advice and maintained ultimate authority when it came to the implementation of the statute. Consumers’ Research argues that the statute only announces vague aspirational policy goals and gives too much legislative power to the FCC. Additionally, Consumers’ Research posits that the private entity’s involvement in the implementation of the statute went beyond advice and amounted to private creation of federal law. This case involves questions regarding the separation of powers and how much leeway agencies have in implementing policy. 

Questions as Framed for the Court by the Parties

(1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. § 254, the amount that providers must contribute to the Universal Service Fund; (2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund's administrator in computing universal service contribution rates; (3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine; and (4) whether this case is moot in light of the challengers' failure to seek preliminary relief before the 5th Circuit.

It has been a longstanding congressional policy to ensure that all Americans have access to telecommunications services. Consumers’ Research v. FCC at 2. For many years, Congress achieved this policy by allowing AT&T, which once held a regulated monopoly over the telecommunications industry, to charge urban customers high rates.

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Mayo Foundation v. United States

Issues

Whether (1) Congress intended that the term “student” be given a broad construction under the Federal Insurance Contributions Act, and (2) the Treasury Department’s regulation construing “student” to exclude medical residents is arbitrary and unreasonable?

 

The Mayo Foundation is suing for a refund of FICA taxes paid on behalf of its medical residents. The IRS claims that medical residents are not students and thus are not eligible for the FICA exemption for student employment. The Treasury Department released regulations that deny the student exemption to any employee that works more than 40 hours per a week. The Mayo Foundation contends that the IRS’s interpretation of the term “student” is incorrect and contrary to congressional intent. If the court rules that medical residents are students, this could lead to significant tax savings for hospitals and residents while reducing the availability of worker protections for medical residents.

Questions as Framed for the Court by the Parties

Whether the Treasury Department can categorically exclude all medical residents and other  fulltime  employees from the definition of “student” in 26 U.S.C. § 3121(b)(10), which exempts from Social Security taxes “service performed in the employ of a school, college, or university” by a “student who is enrolled and regularly attending classes at such school, college, or university.”

FICA Tax

The tax dispute between the Respondent, United States of America (“IRS”), and the Petitioners, Mayo Foundation for Medical Education and Research, Mayo Clinic, and Regents of the University of Minnesota (“Mayo”), is over whether Mayo is responsible for paying 

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Additional Resources

Inside Higher Ed, Doug Lederman: High Court to Hear Tax Case (June 2, 2010)

chamberofcommerce.org, Tax Information Guide

 

 

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Ysursa v. Pocatello Education Association

Issues

Whether, under the First Amendment, a state legislature may bar local governments from making payroll deductions to support political activities.

 

In 2003, the Idaho state legislature passed the Voluntary Contributions Act, which prevents state political subdivisions from making payroll deductions for political activities. The Pocatello Education Association and other organizations challenged the constitutionality of the statute, arguing that it impermissibly burdens free speech. The United States Court of Appeals for the Ninth Circuit found the state does not exercise sufficient control of local governments to allow it to regulate speech through its systems. It therefore found the statute unconstitutional. In this case, the Supreme Court will decide whether a state exercises sufficient control over local governments to allow it to regulate speech through their systems. This decision will impact whether the Court evaluates state government regulations of local governments using strict scrutiny or a “reasonableness” standard of review.

Questions as Framed for the Court by the Parties

Does the First Amendment to the United States Constitution prohibit a state legislature from removing the authority of state political subdivisions to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?

In 2003, the Idaho state legislature enacted the Voluntary Contributions Act (“VCA”). See Pocatello Educ. Ass'n v. Heideman, 504 F.3d 1053, 1056 (9th Cir.

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Additional Resources

· Legal Information Institute, Wex:  First Amendment

· First Amendment Online (hosted by the University of Minnesota Law School)

· First Amendment Law Prof Blog

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