Robert MacLean revealed sensitive information then claimed protection as a whistleblower. Did the United States Supreme Court agree?

Department of Homeland Security v. MacLean, Docket No. 13-894

n July of 2003, the Transportation Security Administration (TSA) learned about a possible plot to hijack American planes. The TSA briefed the Federal Air Marshals as a result. However, not too long after the briefing, the TSA told the Marshals all missions on flights from Las Vegas were cancelled until August of that year. Federal Air Marshal Robert MacLean felt the TSA was not appropriately responding to the threat. He believed that this created a danger to the flying public. Therefore, he contacted an MSNBC reporter regarding the situation.

This was an attempt to create a public controversy. MSNBC then published an article, and members of Congress joined in criticizing the TSA’s decision to cancel those missions. The Transportation Security Administration then rescinded their decision.

Then in 2004, Marshal MacLean appeared disguised on NBC Night News. Yet some TSA employees were able to recognize his voice. MacLean came clean about the 2003 MSNBC article during the investigation that followed. The TSA determined that his contact was an unauthorized disclosure of sensitive security information. As a direct consequence of his actions, MacLean was removed from his position.

MacLean then went to the United States Court of Appeals for the Ninth Circuit, and challenged the determination that he had disclosed sensitive security information. MacLean argued the information about the cancellation of missions was not classified when he received it. He added that this information could not be retroactively classified.

The Court of Appeals held that the TSA had applied the regulations already in force in 2003, in order to determine that information should fall under the classification. MacLean also challenged his removal before the Merit Systems Protection Board (MSPB) and argued that the Whistleblower Protection Act (WPA) protected his actions. The MSPB determined the WPA did not cover MacLean’s actions. This was because the law explicitly prohibited MacLean’s actions. The U.S. Court of Appeals for the Federal Circuit then reversed the Board’s ruling. They held that the Whistleblower Protection Act did not specifically prohibit (by law) MacLean’s actions.

Does the Whistleblower Protection Act prevent an agency from taking enforcement action against an employee who deliberately reveals sensitive security information?

By a vote of 7-2, the United States Supreme Court ruled that the WPA does indeed prevent an agency from retaliating against an employee who intentionally reveals sensitive information. Chief Justice John Roberts delivered the opinion of the court.

The case turned on the language used in the WPA. The listed exception allows for prosecution against disclosures “specifically prohibited by law”, and the Court felt that was significant. Congress used the phrase, “law, rule, or regulation” in other places within the WPA. Hence the fact that the exception only addressed disclosures “specifically prohibited by law” meant Congress did not want the exception to apply to disclosures prohibited by regulations like the germane TSA regulation. The Court rejected the government’s argument that disclosures like MacLean’s were specifically prohibited and that they “gravely endanger[ed] public safety.” The Court felt these concerns were legitimate but held either Congress or the President must address them.

The majority also felt that MacLean had not violated the Aviation and Transportation Security Act (ATSA). Again hanging the opinion on statutory language, Roberts said that the ATSA didn’t prohibit anything; it just authorized the TSA to make regulations.

The ruling was to affirm the case.

Justices Sonya Sotomayor and Anthony Kennedy dissented on the ATSA point. Sotomayor delivered the minority opinion. She said that the Homeland Security Act specifically prohibited this type of disclosure. Hence, Congress meant to prohibit these types of disclosures because it passed the Homeland Security Act. And the Homeland Security Act requires the Transportation Security Authority enact regulations to prevent disclosures like MacLean’s.

This case turned on statutory interpretation more than anything else. By paying particularly close attention to the language of the Whistleblower Protection Act, the majority decided that there was no explicit prohibition against someone like Marshal Robert MacLean going to the press to reveal what he felt were dangerous lapses in security.

The minority opinion felt more of a balance needed to be struck between security and sensitive information. That was opposed to protecting a whistleblower from retaliation. If security issues escalate, and a similar case comes before the Court, the justices may end up changing their minds. The majority might adopt a philosophy a lot closer to the minority’s opinion.