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Tuesday, June 18, 2024 | Back issues
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SCOTUS Victory for Air Marshal Whistle-Blower

WASHINGTON (CN) - Federal law did not block a federal air marshal from attacking Homeland Security's dress code in an MSNBC interview, the Supreme Court ruled.

Robert MacLean, who became a federal air marshal in 2001, initially went to the media out of dissatisfaction with an agency directive canceling missions on flights out of Las Vegas.

Since the Transportation Security Administration had quietly warned on July 26, 2003, of a potential al-Qaida plot to hijack U.S. passenger flights, MacLean believed that the cancelation of all overnight missions a few days later created a danger to the flying public.

MacLean said he addressed his supervisor and the Office of Inspector General regarding the directive, but was told "that nothing could be done."

After MacLean tipped off the press, MSNBC published an article criticizing the directive, several members of Congress added their voices to the chorus, and the TSA reversed its position.

No one knew MacLean leaked that information until September 2004 when "NBC Nightly News" aired a segment in which a disguised MacLean criticized the TSA dress code because he believed it "allowed marshals to be easily identified."

When MacLean was questioned because co-workers detected his voice in that segment, he admitted that he revealed the cancelation directive as well.

The TSA fired MacLean in 2006 after determining that his contact with the MSNBC reporter constituted an unauthorized disclosure of sensitive security information.

In upholding MacLean's removal, the Merit Systems Protection Board found that the Whistleblower Protection Act (WPA) did not protect MacLean's disclosure of the TSA text message.

Whistle-blower regulations prohibit disclosure of sensitive security information, and both an administrative law judge and an appeals board affirmed on the basis that the Aviation and Transportation Security Act (ATSA) directly barred his actions.

In 2013, the Federal Circuit reversed on the basis that the ATSA provides "only criteria" for withholding information, and does not "prohibit" employee conduct under the Whistleblower Act.

After taking up the case last year, the Supreme Court affirmed 7-2 on Wednesday.

The ruling emphasizes that "Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks."

"In sum, when Congress used the phrase 'specifically prohibited by law' instead of 'specifically prohibited by law, rule, or regulation,' it meant to exclude rules and regulations," Chief Justice John Roberts wrote for the majority. "We therefore hold that the TSA's regulations do not qualify as 'law' for purposes of Section 2302(b)(8)(A)."

The ruling also finds that Section 114(r)(1) of Title 49 "does not prohibit anything."

"On the contrary, it authorizes something - it authorizes the under secretary to 'prescribe regulations,'" Roberts wrote. "Thus, by its terms Section 114(r)(1) did not prohibit the disclosure at issue here."

Justice Anthony Kennedy joined a dissent by Justice Sonia Sotomayor that takes issue with this point.

"In sum, with Section 114(r)(1), Congress has required agency action that would preclude the release of information 'detrimental to the security of transportation,'" Sotomayor wrote. "In so doing, Congress has expressed its clear intent to prohibit such disclosures. I would respect its intent, and hold that a disclosure contravening that mandate is 'prohibited by law' within the meaning of the WPA."

The government did strike a chord with the majority in alleging "that providing whistleblower protection to individuals like MacLean would 'gravely endanger public safety,'" risking the confidentiality of sensitive security information "on the idiosyncratic judgment of each of the TSA's 60,000 employees."

Roberts agreed that such "concerns are legitimate," but said "they are concerns that must be addressed by Congress or the president, rather than by this Court."

"Although Congress and the president each has the power to address the government's concerns, neither has done so," Roberts wrote. "It is not our role to do so for them."

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