In a case involving a leak to the media of confidential security plans by a federal air marshal, the Supreme Court ruled against the Department of Homeland Security and in favor of the employee who was terminated after the leak was discovered. Strictly construing the Whistleblower Protection Act in favor of the employee, the Court found the air marshal’s whistleblower claim could proceed despite his actions being in apparent violation of a DHS regulation. Department of Homeland Security v. MacLean, No. 13- 894 (Jan. 21, 2015).
The federal air marshal had disclosed to an MSNBC reporter plans by the Transportation Security Administration to remove air marshals from some overnight flights soon after the DHS had issued a confidential advisory about a potential hijacking plot on domestic flights. MSNBC published the story, causing members of Congress to criticize the TSA, which immediately withdrew the plan. TSA later discovered the source of the unauthorized disclosure and terminated the air marshal. He then filed a claim for retaliatory discharge under the Whistleblower Protection Act, contending the disclosure was protected activity.
The WPA prohibits a federal agency from taking action against an employee or applicant who discloses information reasonably believed to evidence a violation of a law, rule, or regulation. 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.”
DHS argued that the employee’s disclosure was prohibited by the Homeland Security Act under regulations concerning unauthorized disclosure of “sensitive security information,” including information about deployment of federal air marshals, and was not protected by the WPA. Rejecting the government’s argument, however, the Supreme Court ruled the WPA whistleblower protection covered the air marshal. Narrowly interpreting the exception for disclosures that are “specifically prohibited by law,” the Court ruled that the subject disclosures were prohibited by agency regulation and not by law – that is, a statute enacted by Congress. Giving a broad interpretation to the WPA, the Court found the employee could proceed with his whistleblower claim.
For more on this decision, see “U.S. Supreme Court Supports Whistleblower Claim of Employee Fired for Leaking Sensitive Information” at www.jacksonlewis.com.
This decision is consistent with a trend in the lower courts broadening the scope and application of whistleblower laws in favor of employees. To avoid liability for unlawful retaliation, an employer considering the termination of an employee who claims he “blew the whistle” must prepare to counter that claim with a clear, well-documented, and lawful reason for ending the employment relationship.