Supreme Court Ruled Former Federal Air Marshal Protected Under the Whistleblower Act

The Supreme Court has sided with a former Transportation Security Administration Federal Air Marshal who blew the whistle on fraud within the Department of Homeland Security. (Department of Homeland Security v. MacLean, No. 13-894 (U.S. Jan 21, 2015)). Robert MacLean disclosed to an MSNBC reporter that the Department of Homeland Security was attempting to save money by not assigning air marshals to certain long distance flights requiring an overnight stay.  Despite being briefed that al-Qaeda hijackers would be targeting overseas flights, MacLean was informed that no air marshals would be onboard these flights through the end of the fiscal year.  He attempted to resolve the issue internally, contacting the Inspector General’s Office, but was told to keep his mouth shut.  MacLean knew the potential danger of keeping quiet, so he reached out to journalists from MSNBC to convey the story to them.  Within a few hours, MacLean’s story broke.  His identity, however, was kept anonymous.  When MSNBC reported on the Department of Homeland Security’s policy, there was a national outcry and bipartisan outrage, leading the Department of Homeland Security to place marshals on these flights just 24 hours later.  Three years later, when questioned about it by the government, MacLean admitted that he had been the one who had leaked this information to MSNBC.  MacLean was charged with unauthorized disclosure of sensitive security information.  As a result, he was fired.

MacLean filed a whistleblower lawsuit, arguing that his actions fell squarely within the protections of the Whistleblower Act.  This law serves to protect federal employees who disclose actions by their government employer if the disclosure pertains to public safety or unlawful conduct.  Federal agencies are prohibited from taking action against an employee “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 or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8).

The United States Court of Appeals for the Federal Circuit unanimously ruled in favor of MacLean, agreeing that MacLean’s actions were protected under the Whistleblower Act.  Still, the Obama administration appealed the decision to the Supreme Court.  The government argued that if the Federal Circuit’s conclusion stood, then other federal employees would feel comfortable disclosing sensitive information, putting lives in danger. The Supreme Court rejected this argument.

At issue before the Court was whether an exception in the Federal Whistleblower Act applied to MacLean’s case.  There is an exception in the Whistleblower Act that deprives a federal whistleblower of protection if the disclosure is  “specifically prohibited by law.”  The question was whether a TSA regulation prohibiting disclosure of “specific details of aviation security measures” was a “law” that triggered the exception.  Chief Justice Roberts concluded that the TSA regulation did not trigger the exception. Justice Roberts’ ruling was based on the language of the Whistleblower Act itself. The statute regularly used the phrase “law, rule or regulation,” while rarely just using the term “law.”  This, according to Roberts, indicated that when Congress chose to only use the phrase “law” in the exception, “instead of law, rule or regulation,” that revealed Congress’ intent to limit the exception so it did not include a regulation.  Justice Roberts also rejected the Obama administration’s argument that some regulations should be considered law for the sake of this statute, when “promulgated pursuant to an express congressional directive.”  The court noted that the government failed to provide another example of law being defined in that way.  The Supreme Court ruled 7-2 that MacLean’s actions were protected under the United States Whistleblower Protection Act, arguing that MacLean’s case was a paradigmatic example of the type of conduct the Whistleblower Act was enacted to protect.

MacLean has said that he is honored that the Supreme Court took his case and sided with him.  MacLean now has the opportunity to go in front of the Merit Systems Protection Board to seek reinstatement to his position with the agency.


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