Strictly construing the Whistleblower Protection Act (“WPA”) against the employer (here, the government) and in favor of the employee, the U.S. Supreme Court has ruled a federal air marshal’s whistleblower claim may proceed even though he had leaked confidential air security plans to the media in apparent violation of a regulation. Department of Homeland Security v. MacLean, No. 13- 894 (U.S. Jan. 21, 2015). The Court was not swayed by the government’s effort to broadly interpret an exception the WPA as excluding the employee from whistleblower protection.
Federal air marshal Robert MacLean secretly disclosed to an MSNBC reporter that the Transportation Security Administration (“TSA”) was removing air marshals from some overnight flights only days after the Department of Homeland Security (“DHS”) issued a confidential advisory about a potential Al Qaeda hijacking plot on domestic flights. After MSNBC published a story based on this leaked information, members of Congress criticized the TSA plan. Within 24 hours, TSA reversed its decision.
TSA later discovered MacLean was the source of the unauthorized disclosure and terminated his employment. MacLean then commenced a whistleblower claim alleging that he was wrongfully terminated for engaging in activity protected by the WPA. The central question in the case was whether MacLean’s disclosure was protected activity.
Whistleblower Protection Act
The WPA prohibits a federal agency from taking action against an employee or applicant “because of (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences (i) any violation of any law, rule, or regulation . . . .” 5 U.S.C. §2302(b)(8).
However, the WPA protection applies only “if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” Therefore, this case turned on whether MacLean’s disclosure was “specifically prohibited by law.”
Disclosure Not Prohibited
The government employer argued that MacLean’s disclosure was prohibited by law, relying on the Homeland Security Act. That statute, however, merely directed DHS to “prescribe regulations prohibiting the disclosure of information if the Under Secretary decides that disclosure would . . . be detrimental to the security of transportation.” 49 U.S.C. §114(r)(1)(C). DHS issued regulations prohibiting the unauthorized disclosure of “sensitive security information,” which included information about deployment of federal air marshals. 49 CFR §1520.7(j). The government claimed that because those regulations prohibited MacLean’s disclosure, the disclosure was “prohibited by law” and not protected by the WPA.
The U.S. Supreme Court rejected the government’s contention and ruled the WPA’s whistleblower protection applied to MacLean. Although the WPA excludes from its protections disclosures that are “specifically prohibited by law,” the Court read that exception narrowly, thus effectively reading the protections of the WPA broadly. The Court ruled that even though MacLean’s disclosures were prohibited by agency regulation, they were not prohibited by law — that is, a statute enacted by Congress. Therefore, the Court permitted MacLean to proceed with his whistleblower claim.
This decision, though addressing a WPA protected activity provision, is consistent with a trend in the lower courts broadening the scope and application of whistleblower laws, and to restrain or reject limiting principles.
Courts at all levels continue to take a broad view of the application of whistleblower protection laws, sometimes making significant efforts (including using, at times, what to some may seem strained reasoning) to protect employee whistleblowers. Before terminating any employee who claims he “blew the whistle,” an employer should carefully consider its decision. Even though the employer may contend the termination is not retaliatory, and based on lawful reasons alone, it must be prepared to rebut the terminated employee’s claim by establishing a clear, well-documented non-retaliatory reason for terminating the employment relationship with the whistleblower.