Fired air marshal can seek whistleblower protection for revealing security cuts, SCOTUS rules
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A federal air marshal who disclosed plans to cut security on certain flights may seek whistleblower protections because his disclosure wasn’t banned by law, the U.S. Supreme Court has ruled.
The court ruled 7-2 (PDF) on behalf of Robert MacLean, who was fired three years after he leaked the information in 2003 to MSNBC. MacLean claimed protection from firing under a federal whistleblower law that protects employees who reveal a “substantial and specific danger to public health or safety”–unless the disclosure is “specifically prohibited by law.”
Regulations by the Transportation Security Agency banned disclosure, but the law authorizing such regulations did not, Chief Justice John G. Roberts Jr. wrote in the majority opinion.
MacLean was fired for revealing that the TSA was eliminating air marshals on overnight flights to Las Vegas, resulting in a televised report that security was being eliminated on some flights despite a hijacking warning by the Department of Homeland Security.
After the story ran, the TSA reversed the decision. MacLean’s identity was discovered after he spoke to NBC in 2004 in an apparently inadequate disguise to complain that TSA agents were too easy to spot because they had to wear ties. He admitted his role in the earlier report and was fired in 2006.
Roberts said the TSA regulations banning the release of sensitive security information weren’t a “law” within the meaning of the whistleblower statute. “Congress did not use the phrase ‘law, rule or regulation’ in the statutory language at issue here; it used the word ‘law’ standing alone,” Roberts wrote. “That is significant.”
Roberts also said the statute that authorized such regulations didn’t amount to a law prohibiting disclosure. “It is the TSA’s regulations–not the statute–that prohibited MacLean’s disclosure,” Roberts said.
Justice Sonia Sotomayor dissented in an opinion joined by Justice Anthony M. Kennedy. Sotomayor argued that the statute authorizing TSA regulations does prohibit MacLean’s disclosure because it states the TSA “shall” prescribe regulations barring disclosure of information that is detrimental to transportation security.
“‘Shall’ generally means ‘must,’ ” Sotomayor wrote, referring to the book Reading Law: The Interpretation of Legal Texts, which was co-written by Justice Antonin Scalia and Bryan Garner. Garner is an ABA Journal contributor who is editor-in-chief of Black’s Law Dictionary.
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ABAJournal.com: “Can TSA agent who leaked information invoke whistleblower law? SCOTUS to decide”
