Justices Ponder Whether Whistle-Blower Act May Protect Air Marshal Fired for Disclosure

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By Kevin McGowan

Nov. 3 — A federal air marshal terminated by the Transportation Security Administration after leaking to the media “sensitive security information” about air marshal deployments isn't protected by the Whistleblower Protection Act because his disclosure was “specifically prohibited by law,” a Justice Department attorney argued to the U.S. Supreme Court Nov. 4.

A WPA exception for federal employee information disclosures prohibited “by law” covers both disclosures barred by statute and disclosures barred by an agency's substantive regulations promulgated at Congress's command, Deputy Solicitor General Ian Gershengorn said.

The Homeland Security Act, the Aviation and Transportation Security Act and congressionally mandated TSA regulations prohibiting disclosure of sensitive security information put former air marshal Robert J. MacLean within the WPA's exception, Gershengorn argued for the Department of Homeland Security, which houses the TSA.

He warned the court a ruling interpreting the WPA exception not to include disclosures barred by agency regulations would mean any of the TSA's approximately 60,000 employees could publicly disclose sensitive information that potentially endangers commercial air travelers.

But attorney Neal Katyal, representing MacLean, said Congress in 1978 excluded federal agency regulations from the WPA exception. The statutory phrase “by law” refers only to disclosures specifically prohibited by statute, by judicial interpretation of a statute, or by presidential executive order, said Katyal, a former acting solicitor general now with Hogan Lovells in Washington.

Allowing agencies to define what information can't be disclosed and then to punish employees who publicize such information, even if the employees do so because they reasonably believe an agency action threatens public safety, would turn the WPA on its head, Katyal said.

Congress intended the WPA to “restrain” agencies from retaliating against employees who publicly disclose critical information, not to “empower” agencies to carve out exceptions to whistle-blower protection, Katyal said.

He argued that the U.S. Court of Appeals for the Federal Circuit correctly ruled that MacLean, terminated after the TSA learned he informed MSNBC about a text message in which the agency said it was temporarily canceling air marshal assignments on flights requiring overnight stays, can raise a whistle-blower defense to his removal from federal service (714 F.3d 1301, 35 IER Cases 821 (Fed. Cir. 2013)). The Supreme Court in May granted Homeland Security's petition for review.

Both Sides Questioned Closely

During the argument, the justices closely questioned both Gershengorn and Katyal about the legal and practical implications of their conflicting interpretations of the WPA, originally enacted as part of the Civil Service Reform Act of 1978.

Gershengorn said the court should view with “some skepticism” the 1978 act's legislative history, which includes a conference committee report stating “by law” doesn't include agency rules or regulations.

A Senate bill originally limited the WPA exception to disclosures specifically prohibited by “statute” but the final version's reference to “by law” shows Congress intended “a broader formulation” that includes congressionally mandated substantive regulations, Gershengorn said.

Agency procedural rules and interpretive regulations don't trigger the WPA exception, but substantive agency regulations mandated by Congress that satisfy a test set out in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), are included in the “by law” formulation, Gershengorn said.

Given statutory language in Section 114(r) that states “notwithstanding FOIA,” Congress meant to “de-couple” the FOIA exemption and WPA exception analyses, Katyal said. So the TSA could withhold the air marshal deployment information under FOIA but that doesn't mean an agency employee disclosing such information wouldn't have WPA protection, he said.

Some justices expressed doubts about the argument that Congress intended some agency regulations, but not all agency rules, to trigger the WPA exception.

That's not what Homeland Security argued before the Federal Circuit, where the agency apparently conceded a disclosure “specifically prohibited by law” means barred by statute, Chief Justice John Roberts said.

The court can find either that the Homeland Security Act provision codified as 49 U.S.C. § 114(r)(1), the Aviation and Transportation Security Act (ATSA), or the TSA nondisclosure regulations are “law” within the WPA's exception, Gershengorn replied.

Congress elsewhere in the WPA uses the phrase “by law, rule or regulation” but confined the act's exception to “by law,” Justice Antonin Scalia said. Shouldn't the court assume Congress intended “by law” to mean something other than agency regulations? Scalia asked.

When Gershengorn replied that “by law” does exclude “at least some rules and regulations,” such as “internal agency regulations related to agency organization, practice or procedures,” Scalia expressed disbelief the 1978 Congress intended such nuanced distinctions.

If Section 114(r) and the ATSA had been enacted, but no TSA non-disclosure regulations had yet been promulgated, would an employee's disclosure of sensitive security information (SSI) still be “specifically” prohibited “by law” under the WPA exception? Justice Anthony Kennedy asked.

Gershengorn replied Section 114(r) and the ATSA would bar the disclosure, but Kennedy questioned whether the statute alone would meet the specificity test and adequately put TSA employees on notice of what information couldn't be disclosed.

Presidential Order Alternative 

In an extended colloquy, Justice Stephen Breyer asked Gershengorn whether as a practical matter, any real danger to the air-traveling public would result if the court interprets the WPA exception not to include agency regulations.

“I mean, obviously, it's a matter of concern that someone could go around and say there are no marshals on this airplane,” Breyer said. “That is obviously a matter of concern. So if in fact there was a real worry about blowing up airplanes for that reason, could the president then simply use the second prong [of the WPA exception] and say an executive order will require that to be kept secret?”

Gershengorn said the president could issue such an order. But Breyer's solution would be “fundamentally inconsistent” with Congress's judgment that the SSI system “should coexist with the classified information and with executive orders,” Gershengorn said.

Regarding Breyer's statement that the president “could keep people from disclosing the information” that the TSA doesn't want disclosed, Gershengorn said, “I think such a system could be devised, but it would be a very odd construction of the statutes the court has before it to say we're going to eviscerate the SSI system” that Congress endorsed, he said.

Gershengorn suggested problems also might arise with making SSI classified information, as information about air marshal deployments, for example, must be shared with certain airport and airline personnel in addition to TSA employees.

But Roberts said he saw no particular obstacle to a presidential order that would duplicate the agency's current SSI system but prohibit disclosures by law. The president “signs an executive order saying duplicate the SSI system, and right away the problem we have here of people like Mr. MacLean revealing information is not a problem anymore because [SSI] is then protected by executive order,” Roberts said.

Such a process would have “one good effect” as it would ensure “the matter is important enough to occupy the president's attention” and wasn't “so insignificant” that it would be perceived as just an agency seeking to curb whistle-blower protection, Scalia said.

When Is Statute Specific Enough?

During Katyal's argument, Justice Sonia Sotomayor asked how specific Congress must get before a court can find a statute prohibits federal employee disclosure of information.

If the statute read, “Disclosure of information detrimental to transportation safety is prohibited and the TSA shall issue regulations to that effect,” would that be “pursuant to law” under the WPA exception? Sotomayor asked.

Katyal replied that MacLean argues Section 114(r) doesn't prohibit anything and that if it did, its prohibition isn't specific enough to trigger the WPA exception.

Sotomayor asked whether MacLean was arguing that his disclosure didn't potentially harm transportation safety. Katyal replied that MacLean believed he “served national security” by disclosing a TSA decision he believed would dangerously cut air marshal presence on vulnerable long-distance flights.

Sotomayor asked Katyal whether the analysis for a Freedom of Information Act exemption has any relevance in the WPA exception context.

Katyal said given statutory language in Section 114(r) that states “notwithstanding FOIA,” Congress meant to “de-couple” the FOIA exemption and WPA exception analyses. So the TSA could withhold the air marshal deployment information under FOIA, but that doesn't mean an agency employee disclosing such information wouldn't have WPA protection, Katyal said.

The two statutes serve markedly different purposes, as Congress in the WPA means to restrain agencies from punishing employees for disclosure while the FOIA exemptions are meant to empower agencies not to release certain information publicly, Katyal said.

The court shouldn't borrow the FOIA exemption analysis for purposes of the WPA exception, Katyal said. Unlike FOIA, the WPA “affirmatively distinguishes” between “law, rule and regulation” and “law,” Katyal said.

“I think Congress is saying, unlike FOIA, that rules and regulations don't themselves do the prohibiting” under the WPA exception, Katyal said. “That is why the phrase is ‘specifically prohibited by law' ” in the WPA, he said. “There isn't anything like that in FOIA.”

Suppose MacLean instead of going to MSNBC had contacted a reporter for a state-controlled foreign news agency, and the information wasn't quickly released to the public, Justice Samuel Alito said. Would there be any reason why that wouldn't fall under the WPA? Alito asked.

Katyal replied that the WPA doesn't really address Alito's hypothetical. But Congress said the president by executive order “can deal with precisely this problem” of prohibiting disclosure of sensitive information, and it doesn't require making such information classified, Katyal said.

Congress has amended the WPA four times since it was originally passed but never to expand the WPA's exception, Katyal said. “I think Congress each time has looked at this situation and has said every single time, we need more whistle-blowers to come forward because that's the human fail-safe against a machine bureaucracy,” he said.

FOIA Analogy Not Appropriate

Three 1978 legislative reports seem relevant to interpreting the WPA exception, Breyer said. The conference committee report favors MacLean's interpretation but the Senate report refers to the FOIA exemption, Breyer said.

But Katyal said the conference committee report “so clearly gives the answer” to the question presented to the court—whether “by law” includes agency regulations—that the FOIA analysis is superfluous. Even if the FOIA analysis applies, Section 114 (r) and the ATSA are “still too general” to be a statutory prohibition on MacLean's disclosure, Katyal said.

Even if the TSA could withhold the air marshal deployment information under FOIA, that doesn't mean MacLean's disclosure was “specifically prohibited by law” under the WPA, Katyal said.

“What's bothering me is the more general question of driving an interpretive wedge” between the FOIA exemption and the Whistleblower Act, Breyer said. “That's going to get everyone good and mixed up, I think,” Breyer said.

But Katyal said one purpose of FOIA is “empowering agencies” to resist disclosure while the WPA “never refers to empowering agencies.”

“Congress with respect to the [WPA] is concerned about incentivizing [federal employees] to come forward,” Katyal said, citing amicus briefs filed by the federal Office of Special Counsel and members of Congress backing MacLean. “There's no fear about chilling FOIA requests,” he said.

Several amici support MacLean, including the OSC, an independent federal agency that investigates whistle-blower complaints. Eight Republican and Democratic members of Congress who lead the relevant committees, the American Federation of Government Employees, and a group of former federal agency officials also filed amicus briefs backing MacLean's interpretation of the WPA.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the oral argument transcript is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9qjpa6.