Justices to Decide if TSA Nondisclosure Rule Trumps Whistle-Blower Shield for Air Marshal

By Kevin P. McGowan  

May 19 --Granting a petition by the Justice Department, the U.S. Supreme Court agreed May 19 to review whether a federal air marshal fired by the Department of Homeland Security for disclosing “sensitive security information” to the media can raise a Whistleblower Protection Act defense to his removal from federal service.

The justices agreed to review a U.S. Court of Appeals for the Federal Circuit decision that former federal air marshal Robert MacLean, who was fired in 2003 after admitting he leaked a text message to MSNBC in which the DHS informed air marshals it was canceling all missions on Las Vegas flights for about a month, could raise a federal whistle-blower defense ( 714 F.3d 1301, 35 IER Cases 821 (Fed. Cir. 2013); 83 DLR A-5, 4/30/13).

The Federal Circuit said MacLean's public disclosure might qualify for WPA coverage because the Aviation and Transportation Security Act (ATSA) didn't establish particular criteria for nondisclosure regulations. It therefore overturned a Merit Systems Protection Board ruling in favor of the DHS regarding MacLean's removal.

Public Safety at Risk, DOJ Warns

In seeking Supreme Court review, the solicitor general said the appeals court incorrectly interpreted both the WPA and ATSA in ruling federal employees who disclose security sensitive information (SSI) could be protected whistle-blowers.

“The Federal Circuit's decision seriously undermines the effectiveness of the congressionally mandated SSI regime, invites individual federal employees to make disclosures that will threaten public safety, and warrants this Court's immediate review,” the solicitor general said.

Congress in ATSA said the Transportation Security Administration “shall prescribe regulations” prohibiting disclosures that in the TSA's expert opinion would be “detrimental to the security of transportation,” the solicitor general said.

But the Federal Circuit's decision “effectively permits individual federal employees to override the TSA's judgment about the dangers of public disclosure,” the solicitor general said.

Under the Federal Circuit's ruling, an employee can't be punished for publicizing an SSI, no matter how potentially harmful it might be for that information to reach the wrong hands, if the employee “reasonably believes” disclosure serves an interest listed in the WPA provision codified as 5 U.S.C. § 2302(b)(8)(A), the solicitor general said.

But the solicitor general said that interpretation “clears a path for any employee” to do what respondent MacLean did--“go public with an internal disagreement about how best to allocate finite agency resources; put lives in danger by identifying the areas that have received fewer resources; and then attempt to avoid any employment-related repercussions” by claiming his actions revealed a “substantial and specific danger to public health or safety,” as provided in Section 2302(b)(8)(A)(ii).

The Federal Circuit decision contravenes Congress's “manifest intent” as Section 2302(b)(8)(A)'s protections don't apply to disclosures “specifically prohibited by law,” the solicitor general said. “That proviso specifically encompasses disclosures of SSI, which have been prohibited pursuant to an express congressional directive.”

The Federal Circuit's decision “clears a path for any employee” to “go public with an internal disagreement about how best to allocate finite agency resources; put lives in danger by identifying the areas that have received fewer resources; and then attempt to avoid any employment-related repercussions,” the solicitor general said.  


Employees such as MacLean can raise concerns about matters designated as SSI through separate internal procedures, set out in Section 2302(b)(8)(B), that “allow such concerns to be addressed without harmful public disclosures,” the solicitor general said.

Congress Required Nondisclosure Rule

The Federal Circuit distinguished between a nondisclosure obligation appearing in a statute and the TSA's issuing nondisclosure obligations in regulations issued pursuant to congressional authority in holding the latter vulnerable to a WPA defense.

But the solicitor general said it doesn't matter for purposes of the WPA exception whether a federal employee's public disclosure of sensitive information was barred by statute or by congressionally mandated regulation.

In either case, public disclosure was “specifically prohibited by law” and the employee's conduct falls within the WPA exception, the solicitor general said.

In this case, MacLean violated nondisclosure obligations Congress ordered the TSA to promulgate to protect air travel security, the solicitor general emphasized. Even if in some cases a federal employee who violates agency rules prohibiting disclosure might nevertheless have a WPA claim, an employee such as MacLean who violates congressionally mandated rules related to public safety lacks any whistle-blower protection, the solicitor general said.

Solicitor General Donald B. Verrilli is counsel of record for the DHS.

Unique Case Unsuitable for Review

In a brief opposing review, MacLean said Supreme Court review is unwarranted because no federal circuit split exists on the issues presented and the DHS instead presents only a speculative “parade of horribles” to justify high court review.

MacLean disputed the DHS's argument that enforcing the WPA as written will endanger the public and “erode the SSI's scheme's deterrent effect.”

Instead, MacLean said, Section 2302(b)(8)(A) has protected government whistle-blowers since 1978, and regulations prohibiting disclosure of air-safety information have been in place even longer.

“In the more than [35] years that these regimes have coexisted, the sky has not fallen,” MacLean said. “Indeed, DHS does not point to a single other instance where they have come in conflict. Moreover, it acknowledges that there seems to be no such case on the horizon.”

More broadly, the WPA and the SSI scheme don't operate at cross-purposes but rather are complementary regimes both intended to protect the public, MacLean said.

“Far from pitting public safety against employee protection, both regimes play crucial and complementary roles in protecting the public,” MacLean said. “SSI rules do it by prohibiting disclosures that create dangers; the WPA does it by encouraging disclosures that prevent dangers.”

The Federal Circuit issued a narrow decision that MacLean might have a WPA defense and it remanded so the MSPB can reconsider that issue, MacLean said. Neither the court nor the MSPB yet has ruled that MacLean proved a whistle-blower defense and Supreme Court review would interrupt an ongoing case in which either the agency or the court may ultimately find no WPA protection, MacLean said.

But the Federal Circuit properly ruled the SSI nondisclosure regulations don't categorically bar a TSA employee's whistle-blower claim and the justices shouldn't review or overturn that decision, MacLean said.

Agency Can't Create WPA Exception

The appeals court also correctly said the WPA exception regarding disclosures “specifically prohibited by law” means only disclosures that Congress prohibited by statute or the president did by executive order, not disclosures the employing agency barred by regulations, MacLean said.

An alternative interpretation of the WPA that allows federal agencies to retaliate against employees for disclosing any information the agency has declared secret through regulations would eviscerate the whistle-blower law, MacLean said.

“[I]t is entirely unsurprising that Congress enabled itself and the President to create exceptions to whistleblower protections through statutes and executive orders but withheld that power from agencies themselves,” MacLean said. “Expanding the 'specifically prohibited by law' exception to include regulations would undermine the entire enterprise by giving agencies the key to unlock the very restraints intended to bind them.”

Neal Kumar Katyal of Hogan Lovells in Washington is counsel of record for MacLean.


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

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