Dep't of Homeland Sec. V. MacLean, 135 S. Ct. 913 (2015)

An Air Marshall's disclosure of information related to the Transportation Safety Authority (TSA)'s decision to cancel all Air Marshall's missions was protected as whistle-blowing activity because Homeland Security Act, 49 U.S.C. § 114, did not specifically prohibit air marshal's disclosure.

The Factual Background

At issue in this case, is whether the Homeland Security Act, 49 U.S.C. § 114 ("Act"), which directed the Transportation Safety Administration ("TSA"), to promulgate regulations prohibiting the disclosure of sensitive information, precludes an employee from asserting a wrongful discharge and whistleblower claims. Acting within its authority pursuant to such Act, the TSA promulgated regulations prohibiting the unauthorized disclosure of sensitive security information, including details of aviation security measures such as specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.

In July 203, the TSA briefed all air marshals, including plaintiff about a potential plot to hijack passenger flights and within a few days, the TSA cancelled all overnight missions from Las Vegas to save money on hotel costs for air marshals. Fearing the cancellation was dangerous, illegal, and a violation of public policy, plaintiff contacted a reporter from MSNBC and disclosed TSA's decision to cancel the missions. Upon learning of plaintiff's disclosure, TSA ended up terminating the plaintiff, referencing in pertinent part the Act which specifically prohibits the disclosure of certain confidential, private and sensitive information.

In response, plaintiff challenged such termination before the Merit Systems Protection Board ("MSPB") claiming his disclosure constituted protected whistleblowing activity under 5 U.S.C. § 2302, which protects employees who disclose information that reveals any violation of any law, rule, or regulation, or a substantial and specific danger to public health or safety, unless the disclosure is specifically prohibited by law. The MSPB upheld the termination, finding that plaintiff was not entitled to protection under § 2302 of the Act because his disclosure constituted a violation pursuant to § 114 of the Act.

The Court of Appeals

The Court of Appeals for the Federal Circuit, vacated the MSPB's decision, holding that pursuant to § 114, the Act did not explicitly prohibit the disclosure because it was not itself a prohibition of disclosure and, even if it was, it was not specific enough to constitute a prohibition. The Court of Appeals remanded the case so that the MSPB could determine whether the plaintiff met the other requirements for whistleblower protection under § 2302, wherein the TSA petitioned for a Writ of Certiorari which was granted by the Court.

United States Supreme Court

The U.S. Supreme Court affirmed, holding that the exception to the whistleblower protection offered by § 2302 for disclosures "specifically prohibited by law" referred only to Acts of Congress and not to agency regulations similar to the TSA regulations at issue. As such the Court held that § 114 did not itself prohibit any type of disclosure, instead, § 114 only authorized the TSA to establish regulations prohibiting disclosure and as such, plaintiff's disclosure was not specifically prohibited by law.

The significance of this case is that it specifically involved the Court to evaluate the relevant regulations, and make a specific determination regarding the scope of such regulations, in particular whether or not it explicitly prohibited the type of disclosures alleged to have been made by plaintiff and to which the MSPB had used as the basis for its upholding of the termination of plaintiff. Additionally, the case is significant where the Court delineated between an agency’s prohibited disclosures and those set forth by Congress, where when applied to whistleblower laws, only the latter are invoked.

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