United States: Agencies Beware: Supreme Court Leans Toward Air Marshal Whistleblower In Oral Argument

On November 4, 2014, the Supreme Court heard oral arguments in Dep't of Homeland Security v. MacLean, bringing closer to an end the lengthy dispute between Robert MacLean and his former employer, the Transportation Security Administration ("TSA"), which terminated MacLean for disclosing what the TSA deemed sensitive security information ("SSI"). As we discussed in an earlier blog post [ here], MacLean leaked information to the media that the TSA was suspending overnight air marshal travel although it had recently received a threat of an imminent terrorist attack. MacLean argued that the TSA's decision created a danger for the public, while the TSA claimed that MacLean's disclosure "created a vulnerability within the aviation system" that could have led to "another 9/11 incident." MacLean appealed his discharge, arguing that his disclosure was within the reach of the Whistleblower Protection Act of 1989 ("WPA"), which 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 not specifically prohibited by law" or an executive order. Pub. L. 101-12 §1213(a), amended by 112-199.

The Merit Systems Protection Board upheld MacLean's removal, ruling that regulations the TSA promulgated prohibiting the disclosure of SSI  ̶  which Congress empowered the agency to prescribe under the Aviation and Transportation Security Act ("ATSA")  ̶  satisfied the WPA's "specifically prohibited by law" exemption. The Federal Circuit Court of Appeals disagreed, holding 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." The court looked to a draft version of the WPA and concluded that Congress had purposefully omitted 'regulations' from the exemption to avoid "enabl[ing] an agency to discourage an employee from coming forward with allegations of wrongdoing." MacLean v. Dep't of Homeland Security, 714 F.3d 1301 (Fed. Circ. 2013) (citing S. Rep. No. 95-969, 95th Cong., 2d Sess. 12 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2743-44).

Several Justices on the Supreme Court appeared to agree with the Federal Circuit on this point in the oral argument. In particular, Justice Breyer asked Deputy Solicitor General Ian Gershengorn, who argued for the government, why the president could not simply issue an executive order that would prevent the disclosure of the type of information MacLean revealed. Justice Scalia added that one good effect of Justice Breyer's suggestion is that "it would make sure that the matter is important enough to occupy the president's attention and is not so insignificant that an agency that just doesn't want any whistleblower, doesn't want any criticism of what it's doing, can pump out these regulations." Justice Scalia further asked what he should conclude from the fact that other parts of the legislation stated "by law, rule or regulation," yet the whistleblower exemption stated solely "by law." Gershengorn argued that "by law, rule or regulation" included agency internal rules and agency rules of organization, order and practice, while, as the Court set forth in a three-part test in its Chrysler ruling, regulations that were 1) substantive and of a legislative type, 2) reasonably within the contemplation of Congress and 3) properly promulgated were counted as "by law." Justice Scalia, however, was not convinced that Congress had in mind such a "subtle" distinction.

Neal Katyal, MacLean's attorney, following what appeared to be the justices' lead, argued that the language of the legislation empowering the TSA to prescribe regulations prohibiting disclosure of information if the "undersecretary decides disclosing information would be detrimental to the security of transportation" was too general to satisfy the WPA "specifically prohibited by law" exemption.

Katyal further contended that MacLean's conduct did not harm transportation safety, because he "saved national security" and disclosed the information only after he went to his supervisor and the inspector general, who did not take the action MacLean believed they should. Justice Scalia himself then noted that MacLean had been successful, because the TSA called off the cancellations. Along with seeming to have most of the justices' support, nine amicus briefs were filed in support of MacLean by, among others, members of Congress and the United States Office of Special Counsel.

Gershengorn cautioned the justices in his closing remarks, after they appeared to suggest that the facts were in MacLean's favor, that 60,000 TSA employees did not have a full picture of the threats, the resource constraints or the full extent of the information or experience that the agency was taking into account when making decisions. A Supreme Court ruling in favor of MacLean could have widespread implications to other government agencies. Such a ruling, however, would not be out of line with the growing body of case law favoring whistleblowers and the continued strengthening of whistleblower laws, which all companies and organizations must be privy to and cognizant of to ensure they are not violating whistleblower protections.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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