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Feb 3, 2015

U.S. Supreme Court Upholds Whistleblower Protection for TSA Employee

ABSTRACT: A former federal air marshal's communication of TSA decision to terminate missions, despite a hijacking threat, was protected under the whistleblower statute because it was not a "specifically prohibited disclosure."

On January 21, 2015 the Supreme Court decided the case of Department of Homeland Security v. Robert J. MacLean, involving a former federal air marshal’s 2003 disclosure that the TSA had cancelled certain missions to save costs, although it was aware of and had disclosed to air marshals the existence of a potential plot to hijack flights. MacLean believed that cancelling the missions was dangerous and illegal. He disclosed the cancellations to an MSNBC reporter who subsequently published the story. Following the TSA’s discovery that MacLean was the source of the information, MacLean was terminated for disclosing sensitive security information without authorization. MacLean challenged his termination, arguing that his disclosure constituted whistleblowing and was therefore protected.

MacLean first challenged his termination before the Merit Systems Protection Board, which determined that the disclosure was specifically prohibited by law and therefore not protected by the whistleblower statute. The Court of Appeals for the Federal Circuit vacated the Board’s decision, finding that for MacLean’s disclosure to be specifically prohibited by law it had to be prohibited by a statute, not simply a TSA regulation. The Supreme Court granted certiorari and affirmed the Court of Appeals.

Federal law provides a general protection to whistleblowers – persons who disclose information that reveals the “violation of any law, rule, or regulation,” or “a substantial and specific danger to public health and safety,” but an exception exists for disclosures that are “specifically prohibited” by law. 5 U.S.C. §2302(b)(8)(A). The Government argued that MacLean’s disclosure was specifically prohibited by law in two ways. First, it argued that MacLean’s disclosure was specifically prohibited by the TSA’s regulations on the unauthorized disclosure of sensitive security information.  Second, the Government argued that the disclosure was prohibited by 49 U.S.C. §114(r)(1), which authorized the TSA to promulgate those regulations.

The first issue before the Court was whether the TSA’s regulations constituted laws. Finding that Congress intentionally used only the word “law” to identify prohibited disclosures – as opposed to the phrase “law, rule, or regulation” – the Court found that Congress meant to exclude rules and regulations. Additionally, to interpret the word “law” so broadly would defeat the purpose of the whistleblower statute – i.e. an agency could insulate itself by simply promulgating a regulation that specifically prohibited whistleblowing. The Court noted that “Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their own ranks.” Thus, the Court held that the TSA’s regulations did not qualify as laws for purposes of the whistleblower statute.

The second issue before the Court was whether 49 U.S.C. §114(r)(1) itself prohibited the air marshal’s disclosure.  Section 114(r)(1) provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security…[if the disclosure of such information would]…be detrimental to the security of transportation.” The Court summarily dismissed the Government’s argument that MacLean’s communication could be prohibited under this section because it specifically authorizes the promulgation of regulations, and prohibits nothing. In other words, Section 114(r)(1) only gives the TSA power to prohibit the disclosure of information. Standing alone, it does not create a prohibition against any disclosure.

The Government also raised a public policy argument. Providing whistleblower protection to individuals like MacLean might endanger public safety and could make the confidentiality of security information subject to the judgment of the TSA’s 60,000 employees. The Court identified these concerns as “legitimate” but held that only Congress or the President could properly address them.   

Conclusion: Some may be tempted to view the MacLean case as a broad embrace by the Supreme Court of whistleblower claims. But we think it should be read more narrowly as a lesson in statutory construction, in which the Court carefully parsed what the statute did and did not say, considered the statute’s purpose, and rendered its judgment accordingly.