SCOTUSblog: Department of Homeland Security v. MacLean
TSA briefing that there was a potential plot to hijack U.S. airliners. Soon after the briefing, however, the TSA sent an unencrypted text message to the marshals' cell phones canceling all missions on flights from Las Vegas until early August. Concerned about the danger the threat posed to the flying public in the absence of marshals on these flights, marshal Robert MacLean contacted his supervisor and the Office of the Inspector General. Dissatisfied, he revealed the cancellation order to an MSNBC reporter. Following an investigation, MacLean was removed from his job as a federal air marshal for revealing sensitive security information (SSI), although the agency had not labeled the text message as SSI when it was originally sent. MacLean challenged his removal before the Merit Systems Protection Board, arguing that his disclosure was protected whistleblowing activity. The Board determined that MacLean's disclosure fell outside of the Whistleblower Protection Act (WPA) because the disclosure was specifically prohibited by statute, via the Aviation and Transportation Security Act. The Court of Appeals for the Federal Circuit vacated the Board's decision because it held that the ATSAdid not specifically prohibit the disclosure made by MacLean. Although the ATSA empowers the agency to prescribe regulations prohibiting the disclosure of SSI, regulations by themselves are not considered laws for the purpose of the WPA. As a result, the case was remanded to the Board for a determination about whether MacLean's disclosures qualify for WPA protection.
Edited to add (Oct 9 2014): Mr. MacLean contacted me to say that he challenges the DHS assertion that the text message was limited to Las Vegas flights, and claims that the cancellation applied to all overnight flights. Specifically, MacLean believes that DHS deliberated narrowed the facts from a general whistlelower claim to just the Las Vegas flights because that would be a "specific detail of aviation security measure;" thereby bolstering the claim against him. I'm not sure that matters at this stage; the Federal Circuit's opinion only referenced the Las Vegas flights, and facts generally cannot be challenged at this level. But because MacLean contacted me, I included that information here. Stay tuned to see whether his lawyers raise the issue during oral arguments.
Issue: The question before the Court is whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.
Holding: In a 7-2 decision, the Supreme Court ruled that MacLean’s disclosure was not prohibited by the TSA’s regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as “law” under that statute.