Supreme Court expands whistleblower protection

February 26, 2015

Westlaw Journals Commentary thumbThe U.S. Supreme Court, in a split decision, has affirmed the decision of the U.S. Court of Appeals for the Federal Circuit holding that plaintiff Robert J. MacLean is entitled to whistleblower protection pursuant to the Whistleblower Act, 5 U.S.C. § 2302(b)(8)(A).  Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015).

The decision expands whistleblower protections for federal workers by limiting prohibition to the disclosure of information to those addressed via statute and not those addressed via regulation.

Background

Former federal air marshal MacLean was terminated by the Transportation Security Administration for publicly disclosing sensitive information.  Specifically, in July 2003, the TSA briefed MacLean and his fellow air marshals about a potential plot to hijack domestic passenger flights.  As a result, the TSA stationed various air marshals on overnight flights in an apparent effort to thwart any hijacking attempts.

Soon thereafter, MacLean received a text message from the TSA stating that the stationing of air marshals on overnight flights from Las Vegas was being canceled until August 2003.  MacLean questioned the directive and was advised that budgetary concerns required the action.  He made further inquiries with the Department of Homeland Security, which advised that the TSA’s decision would not be changed.

According to MacLean, he believed that the TSA’s directive was illegal as 49 U.S.C. § 44917(b) requires the TSA to place an air marshal on every flight that presents “high security risks.”  Because his superiors appeared unwilling or unable to reverse the TSA’s decision and because he believed the law had been violated, MacLean contacted an MSNBC reporter regarding these events.

Soon thereafter, MSNBC published a story about the TSA’s directive, causing an immediate response from Congress and ultimately a reversal of course by the TSA.  Within 24 hours of the story being published, air marshals were again assigned to Las Vegas overnight flights.

About one year later, MacLean appeared for an interview on “NBC Nightly News” regarding an unrelated topic, but the TSA became suspicious and began investigating whether he was the source of the July 2003 story published on MSNBC.  MacLean ultimately admitted that he was the source, and the TSA terminated him.

MacLean challenged his termination with the Merit Systems Protection Board, arguing he was entitled to whistleblower protection pursuant to 5 U.S.C. § 2302(b)(8)(A).  The MSPB upheld MacLean’s termination, stating that he was not entitled to whistleblower protection because his disclosure was “specifically prohibited by law,” citing 49 C.F.R. § 1520.5(a)-(b), which defines sensitive security information.

Federal Circuit

The  Federal Circuit vacated the MSPB’s decision, holding that MacLean’s disclosure did not violate a specific law, but in contrast only violated a regulation, which was not sufficient to deny him whistleblower protection.

Supreme Court

The high court determined this case to be important enough to review inasmuch as it involved a careful review of the delicate balance between employee “free speech” rights as protected by the Whistleblower Protection Act and “secrecy regulations” promulgated by federal regulatory agencies, particularly the TSA.

The Supreme Court looked first to the Whistleblower Protection Act, which states that “an employer shall not take or threaten to take any action against an employee because the employee discloses information that they reasonably believe violates any law, rule or regulation.”

This rule applies so long as the disclosure is not specifically prohibited by “law” and if such information is not specifically required by executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.

Here, there appears to be no dispute between the parties that MacLean disclosed the information to MSNBC because he reasonably believed a law, rule or regulation was violated in removing the air marshals from the Las Vegas flights.

Thus, the Supreme Court determined that MacLean’s action did fall within the basic whistleblower protections of Section 2302(a)(8).  This allowed the court to focus solely on whether MacLean’s actions were prohibited by law or executive order, the latter of which would not afford MacLean the protections he sought.

The DHS argued that MacLean’s disclosure was prohibited by TSA regulations regarding sensitive security information, specifically 49 C.F.R. §§ 1520.5(a)-(b), 1520.7(j) (2003).  In an effort to strengthen its argument, the DHS said this specific regulation was authorized by 49 U.S.C. § 114(r)(1), which prohibits the disclosure of any information relative to the number of air marshals deployed, specific deployment of missions or the manner in which missions are conducted.

MacLean did not dispute the regulation but argued that it was enacted by the TSA — an administrative agency — and is not a “law”; therefore, he was entitled to the full protection of the whistleblower statute.

The Supreme Court agreed, holding that the TSA regulation was not a “law” and MacLean’s disclosure was not prohibited.  The court performed a thorough analysis of Section 2302, examining the whistleblower provisions outlined in Section 2302(b)(8) in addition to the balance of the remaining provisions relating to a wide variety of employment-related decisions.

By emphasizing that Congress used the phrase “law, rule or regulation” in various other provisions within the statute but only used the word “law” in Section 2302(b)(8), the Supreme Court found that Congress acted purposely and deliberately when drafting this particular provision of Section 2302.

The court rejected the DHS’ argument that the TSA regulation prohibiting the disclosure of air marshal activity was promulgated by Section114(r)(1)(c), and thus MacLean’s actions did in effect violate a “law”.

To the contrary, the court determined that Section 114(r)(1)(c) itself did not prohibit any specific act.  Instead, it simply authorized the TSA to promulgate regulations the agency deemed necessary to protect sensitive information.

The high court also rejected the government’s public policy argument that individual TSA agents who obtain sensitive information cannot be permitted to use their discretion regarding whether to disclose this information to the public.  To allow this form of discretion could place the public at greater risk.

Although the justices were clearly sensitive to this concern, they simply stated that it was either Congress’ or the president’s obligation to change the law if either deemed it necessary to protect this public interest.

It is noteworthy that the Supreme Court’s decision was not unanimous.  Justices Sonia Sotomayor and Anthony M. Kennedy issued a strong dissenting opinion, taking exception to a portion of the majority’s ruling.

Specifically, the dissent concluded that Section 114(r)(1) does prohibit the type of disclosures MacLean made.  The dissent said the majority’s holding leaves the discretion to violate the TSA regulations in the hands of each TSA agent, which is, according to the dissent, a “dangerous exercise” in discretion.  Thus, the dissent concluded that a law was violated and MacLean was not entitled to whistleblower protection.

Looking ahead

With the recent, well-publicized stories of whistleblowers Edward Snowden and Chelsea (Bradley) Manning, both of whom leaked classified documents, among others, the Whistleblower Act has caused great debate among the public and in Congress regarding the balance between the “importance” of federal employees’ public disclosure of sensitive information that may harm the public against protecting information the government does not want the general public or the United States’ enemies to have.

The solution is far more complex.

The inherent purpose of the Whistleblower Act is to prevent the government from hiding from the public that which is illegal.  The law encourages employees to publicly speak out against illegal government acts without risking retribution, specifically termination.  This appears to be a noble endeavor, but when the disclosure of the information may risk public safety or the personal safety of government agents, the question arises as to whether these employees are protected.  Congress and the courts wrestle with these debates often.

The MacLean decision significantly broadens the protections of the whistleblower statute.  By prohibiting disclosure of information to that only prohibited by “law” or “executive order,” the Supreme Court is sending a clear signal to prospective whistleblowers that, absent an amendment by Congress or an act of the president, in most instances their actions will entitle them to whistleblower protection.

More importantly, by limiting the statutory language, the high court has put Congress on notice that if it desires to limit whistleblower protection, it must amend the statute to do so.

Congress can limit protection in two ways.

First, it can pass laws against the disclosure of specific information by government employees, in this case TSA employees.  Thus, if an employee discloses said information to the public, the disclosure would violate a “law” and the whistleblower would not be entitled to statutory protection.

Second, Congress could simply amend Section 2302(b)(8) to include the term “law, rule or regulation.”  If Congress were to take this action, it would be a clear signal that it intends for all regulations, including TSA regulations, to have the same effect as laws.  A congressional action of this nature would significantly limit whistleblower protection going forward.

The Supreme Court also sent a signal to the White House that if it desires to limit whistleblower protection, it has the inherent power to do so by executive order.

The president can accomplish this in two ways.

First, the president can sign specific executive orders articulating that certain information is prohibited from disclosure and, thus, whistleblower protections do not apply.

Second, the president can sign an executive order stating that all government regulations regarding the nondisclosure of information about security measures have the effect of law.  The Supreme Court even implied that this would be a simple way to resolve the issue.

A consensus of critiques on the matter reveals that neither Congress nor the president will act any time soon.

For either to act in the manner described above would be an indication that they desire to limit whistleblower protection.  This is a signal neither Congress nor the president seeks to relay to their constituents at this time.

Instead, Congress, through statute, or the president, via executive order, may promulgate specific laws that prohibit the disclosure of particular information with respect to certain government agencies.  While this may limit some whistleblower activity, it would be on a case-by-case basis and would be far more fact-specific than a general limitation of whistleblower protection.

With a new Congress and only two more years until a new presidency, it will be interesting to see how this issue progresses.