On January 21, 2015, the Supreme Court of the United States decided whether a federal air marshal, who publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain flights, was entitled to whistleblower protection. According to the Court’s ruling, the air marshal’s disclosure did not fall under an exception to the whistleblower law for disclosures that are “specifically prohibited by law.” In a majority opinion written by Chief Justice Roberts, the Court ruled, 7-to-2, that the air marshal’s disclosure was not “specifically prohibited by law,” but rather was specifically prohibited by a regulation. Department of Homeland Security v. MacLean, No. 13–894, Supreme Court of the United States (January 21, 2015).

Background

As a federal air marshal, Robert J. MacLean was assigned to protect passenger flights from hijackings. In 2003, the Department of Homeland Security (DHS) issued a confidential advisory about a potential hijacking plot. As a result, the TSA briefed all federal air marshals, including MacLean, about the plot. Several days later, MacLean received a text message from the TSA stating that air marshals would no longer be covering overnight missions from Las Vegas, where MacLean was stationed.

Believing that cancelling these missions was dangerous and illegal, MacLean inquired with his supervisor, reported the cancellations to the DHS, contacted an MSNBC reporter, and appeared on the NBS Nightly News television program, in disguise, to discuss his concerns about the cancellations.

The TSA investigated and MacLean admitted that he had disclosed the contents of the 2003 TSA text message. In 2006, the TSA fired MacLean for disclosing sensitive security information without authorization.

MacLean challenged his firing before the Merit Systems Protection Board, which held that MacLean did not qualify for whistleblower protection. The U.S. Court of Appeals for the Federal Circuit vacated the Board’s decision, and the case was appealed to the Supreme Court.

The Homeland Security Act and Its Regulations

The Homeland Security Act gives authority to the TSA to implement regulations that prohibit individuals from disclosing information “obtained or developed in carrying out security” if disclosing the information would “be detrimental to the security of transportation.” As such, the TSA’s regulations prohibit the unauthorized disclosure of “sensitive security information,” including “details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.”

Whistleblower Protections

The Whistleblower Protection Act of 1989, 5 U. S. C. §2302(b)(8)(A), protects employees who disclose information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” There is an exception to these protections, however, for disclosures that are “specifically prohibited by law.” Thus, federal whistleblower law does not protect an employee who discloses information that it is illegal to disclose.

The Supreme Court’s Decision

The government argued that the whistleblower law does not protect MacLean because his disclosure regarding the canceled missions was “specifically prohibited by law” in two ways:

  1. by the TSA’s regulations prohibiting the unauthorized disclosure of “sensitive security information;” and
  2. the Homeland Security Act, which authorized the TSA to promulgate the regulations prohibiting the unauthorized disclosure of “sensitive security information.”

The Supreme Court rejected these arguments and held that MacLean’s disclosure was not “specifically prohibited by law.”

With regard to the first argument, that the TSA’s regulations prohibit the unauthorized disclosure of “sensitive security information,” the majority opinion notes that the whistleblower law includes an exception for disclosures that are specifically prohibited by law, not those that are specifically prohibited by regulations. The Court reasoned that Congress deliberately chose the phrase “specifically prohibited by law” in section 2302(b)(8)(A)’s whistleblower protections, rather than “specifically prohibited by law, rule, or regulation,” which Congress used throughout section 2302—suggesting that Congress meant to exclude rules and regulations.

The Court also found flaws in the government’s argument that the Homeland Security Act prohibited MacLean’s disclosure. According to the Court:

This statute does not prohibit anything. On the contrary, it authorizes something—it authorizes the Under Secretary to “prescribe regulations.” Thus, by its terms Section 114(r)(1) did not prohibit the disclosure at issue here.

Finally, the Court considered the government’s argument that “providing whistleblower protection to individuals like MacLean would ‘gravely endanger public safety.’” The Court found that the government’s safety concerns were legitimate, but should be addressed by Congress or the president. According to the Court, Congress could amend the law so that the TSA’s prohibitions on disclosure override the whistleblower protections at issue. Alternatively, the president could prohibit the disclosure of sensitive security information by executive order. Noting that Congress and the president have not used their powers to address the government’s concerns, the Court concluded, “it is not our role to do so for them.”

The Supreme Court thus affirmed the Federal Circuit’s decision, which vacated the decision of the Merit Systems Protection Board.

Practical Impact

According to Margaret H. Campbell, a shareholder in the Atlanta office of Ogletree Deakins and co-chair of the firm’s Ethics Compliance, Investigations and Whistleblower Response Practice Group, “This decision addresses a particular statute and its rule is limited to that statute.? It does, however, illustrate the tension between protecting sensitive information from disclosure and inhibiting whistleblowers’ rights that is occupying significant attention among regulatory agencies and courts. This area of the law is developing rapidly and bears close attention.”