On July 25, 2014, the U.S. Government will submit its opening brief to the Supreme Court in the decade-long battle that began when the Transportation Security Administration (“TSA”) terminated former air marshal-turned federal whistleblower Robert MacLean. MacLean released information regarding the TSA’s decision to reduce air marshal travel soon after it had received a heightened security alert that a terrorist attack was imminent. The TSA and MacLean have been embroiled in what has become a public debate over the reach of the Whistleblower Protection Act of 1989 (“WPA”) to protect federal employees who release government information and its impact on national security. On May 19, 2014, the Supreme Court granted the Government’s petition for certiorari to once and for all settle this ongoing dispute.
Robert MacLean served as a federal air marshal from 2001 to 2005, when he was removed from his position for disclosing to an MSNBC reporter a text message, which notified air marshals that the TSA was cancelling certain overnight missions. MacLean believed that the TSA’s decision created a danger to the flying public because the TSA had recently briefed the air marshals about a potential plot to hijack United States airliners. MacLean maintained that prior to leaking the text he had expressed his concerns to both his supervisor and the Office of the Inspector General, both of whom declined to take action. The reporter published the information criticizing the TSA which spurred a congressional debate causing the TSA to backtrack on its decision. MacLean was terminated after he identified himself as the source during an investigation into another media disclosure matter.
MacLean appealed his discharge to the Merit Systems Protection Board (“MSPB”) arguing that the text did not contain Sensitive Security Information (“SSI”) that TSA regulations prohibited from disclosure, and that even if it did, his disclosure was protected whistleblower activity under the WPA. The WPA protects from retaliation federal employees who report agency misconduct that they believe to be “a substantial and specific danger to public health or safety,” as long as “such disclosure is notspecifically prohibited by law” or an Executive order. Pub. L. 101-12, § 1213(a), amended by 112-199. After the TSA designated the disclosed information SSI, the MSPB ultimately upheld MacLean’s removal, ruling that because his disclosure was prohibited by the “regulations governing SSI,” it was “specifically prohibited by law,” satisfying the WPA exemption. MacLean v. Dep’t of Homeland Sec., 112 M.S.P.R. 4, 12–18 (2009). The Federal Circuit Court of Appeals disagreed.
On appeal, the Federal Circuit held that “in order to fall under the WPA’s ‘specifically prohibited by law proviso,’ the disclosure must be prohibited by a statute rather than a regulation,” a fact that the court ruled the “parties do not dispute.” Thus, the TSA regulation that prohibited the disclosure of SSI did not constitute a “law” under the WPA, and the Aviation and Transportation Security Act (“ATSA”), which empowered the TSA to prescribe regulations prohibiting the disclosure of SSI, did not “specifically prohibit” any conduct to satisfy the WPA exemption. The court reasoned that Congress purposefully omitted language in the draft version of the WPA that protected disclosures except those “prohibited by law, rule or regulation” to avoid “encourag[ing] the adoption of internal procedural regulations against disclosure . . . enabl[ing] an agency to discourage an employee from coming forward with allegations of wrongdoing.” S. Rep. No. 95-969, 95th Cong., 2d Sess. 12 (1978),reprinted in 1978 U.S.C.C.A.N. 2723, 2743–44. The Federal Circuit further reasoned that while it was a “very close case,” TSA regulations are not on par with the other statutes that fall under the WPA exemption, including the Trade Secrets Act and the Internal Revenue Code.
The Government’s Supreme Court petition for certiorari called the Federal Circuit’s ruling a “dangerous precedent” that effectively permits individual federal employees to “override the TSA’s judgments about the dangers of public disclosures” and “go public with an internal disagreement about how best to allocate finite security resources.” The Government argued that Congress intentionally vested the TSA with the authority to prescribe regulations to protect SSI under the ATSA. Thus, the power of the TSA to create its own regulations qualifies the regulations as “laws” as intended under the WPA. MacLean—pointing to the Federal Circuit’s ruling that the parties did not dispute that a regulation did not constitute a law under the WPA—argued that the Government had waived its right to contend that the TSA regulations were laws and that the Government was merely trying to circumvent the broad protections granted to whistleblowers under the WPA. MacLean argued that the Supreme Court should examine the WPA’s language “to give effect to [its] central purpose: protecting government whistleblowers from the agencies that would retaliate against them.” MacLean further accused the Government of propagandizing the case by overblowing the Federal Circuit’s decision and contriving a tension between whistleblower protections and the public interest. The Supreme Court will have the final say, however, after it hears oral arguments on the case during its next term, October 2014 – June 2015.