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...