Department of Homeland Security v. MacLean
190 L. Ed. 2d 771, 135 S. Ct. 913, 2015 U.S. LEXIS 755 (2015)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the Whistleblower Protection Act, the exception for disclosures "specifically prohibited by law" refers only to prohibitions enacted in statutes by Congress, not to prohibitions created by agency regulations, even if those regulations are promulgated pursuant to a statutory grant of authority.
Facts:
- Robert J. MacLean was a federal air marshal for the Transportation Security Administration (TSA).
- In July 2003, during a high-level hijacking alert, the Department of Homeland Security issued a confidential advisory about a potential al Qaeda plot.
- Shortly after being briefed on the threat, MacLean received a text message from the TSA cancelling all overnight air marshal missions from Las Vegas.
- A supervisor informed MacLean that the cancellations were to save money on hotel costs.
- After his concerns were dismissed by a supervisor and the DHS Inspector General's Office, MacLean disclosed the mission cancellations to an MSNBC reporter.
- The resulting news story led to public criticism, and the TSA reversed its decision within 24 hours.
- In 2006, after an investigation into an unrelated matter, MacLean admitted to being the source of the 2003 disclosure.
- The TSA terminated MacLean's employment for disclosing sensitive security information without authorization.
Procedural Posture:
- The Transportation Security Administration (TSA) fired Robert J. MacLean.
- MacLean appealed his termination to the Merit Systems Protection Board (MSPB), a quasi-judicial agency, arguing his disclosure was protected whistleblowing.
- The MSPB, as the administrative tribunal of first instance, affirmed the TSA's action, holding that MacLean's disclosure was not protected because it was 'specifically prohibited by law.'
- MacLean (as petitioner) sought review of the MSPB's decision in the U.S. Court of Appeals for the Federal Circuit.
- The Federal Circuit, an intermediate appellate court, vacated the MSPB's decision, holding that the TSA regulation was not a 'law' and the authorizing statute was not a specific prohibition.
- The Department of Homeland Security (as petitioner) petitioned the U.S. Supreme Court for a writ of certiorari, which was granted.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a federal employee's disclosure of information, which is prohibited by an agency regulation, fall under the Whistleblower Protection Act's exception for disclosures 'specifically prohibited by law'?
Opinions:
Majority - Chief Justice Roberts
No. A disclosure prohibited only by an agency regulation is not 'specifically prohibited by law' under the Whistleblower Protection Act. The plain text of the statute distinguishes between 'law' and 'law, rule, or regulation.' Congress repeatedly used the broader phrase 'law, rule, or regulation' in the same section but chose the narrower term 'law' for this specific exception, indicating an intentional exclusion of rules and regulations. To hold otherwise would allow an agency to insulate itself from whistleblowing simply by promulgating a regulation. Furthermore, the statute authorizing the TSA to create these regulations, 49 U.S.C. § 114(r)(1), is not itself a prohibition; it only grants the TSA discretion to 'decide' whether to prohibit disclosures, meaning the prohibition stems from the agency's regulation, not from the law itself.
Dissenting - Justice Sotomayor
Yes. While agreeing that 'law' means statute and not regulation, the dissent argues that 49 U.S.C. § 114(r)(1) is itself a congressional prohibition. The statute's use of the word 'shall' imposes a mandatory duty on the TSA to prohibit the disclosure of information that it determines is detrimental to transportation security. The discretion afforded to the agency is merely to identify which information falls within the scope of Congress's command, not whether to issue a prohibition. Therefore, the prohibition originates with Congress in the statute, and MacLean's disclosure was 'specifically prohibited by law'.
Analysis:
This decision significantly strengthens protections for federal whistleblowers by narrowly interpreting the 'specifically prohibited by law' exception. It establishes a clear precedent that federal agencies cannot use their own rulemaking authority to shield themselves from whistleblower disclosures that are otherwise protected. The ruling places the burden on Congress to legislate explicit statutory prohibitions if it intends to override whistleblower protections for specific categories of information. This holding may encourage federal employees to report waste, fraud, and abuse without fear that an internal agency rule could strip them of legal protection.
