September 19, 2020

US High Court bolsters whistleblower protection


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Robert MacLeanBy Marcia Coyle, From Supreme Court Brief

The U.S. Supreme Court on Wednesday strengthened legal protections for government whistleblowers in a decision involving a fired federal air marshal.

The justices, in a 7-2 opinion by Chief Justice John Roberts Jr., held that Robert MacLean’s disclosure of planned cutbacks to air marshals on certain commercial flights was not “specifically prohibited by law,” an exception to the Whistleblower Protection Act.

“The question here is whether a disclosure that is specifically prohibited by regulation is also ‘specifically prohibited by law,’ ” Roberts wrote. “Congress’ choice to say ‘specifically prohibited by law’ rather than ‘specifically prohibited by law, rule or regulation’ suggests that Congress meant to exclude rules and regulations.”

“Today’s decision is an important victory for whistleblowers everywhere, and of course in particular for Robert MacLean,” said Neal Katyal of Hogan Lovells, who represented MacLean pro bono. “More than that, it’s a victory for all Americans, who depend on federal employees to warn them of bureaucratic errors that endanger our security.”

Department of Homeland Security v. MacLean stemmed from a decision in 2003 by the Transportation Security Administration. The agency sent MacLean and other air marshals a text message canceling missions on commercial flights that required them to remain overnight. The directive was an effort to save money. MacLean voiced concerns about the effect on public safety to his supervisor and the agency’s inspector general, both of whom said nothing could be done.

MacLean subsequently contacted an MSNBC reporter about the directive and the reporter published an article about it. The article triggered public and congressional criticism of the agency, which then canceled the directive.

Two years later, the agency discovered that MacLean had been the source of the article and fired him for disclosing sensitive security information. He challenged his firing through the administrative process and finally to the U.S. Court of Appeals for the Federal Circuit, where the question was whether his disclosure was “specifically prohibited by law.”

The Federal Circuit ruled for MacLean, finding that the disclosure must be prohibited by a statute rather than by a regulation. And the relevant statute—the Aviation and Transportation Security Act—only provides “general criteria” for withholding “information detrimental to the safety of transportation,” according to the court.

In the Supreme Court, the government argued that the whistleblower law did not protect MacLean because his disclosure was “specifically prohibited by law” in two ways. First, the TSA regulations covering sensitive security information prohibited the disclosure. And second, the disclosure was prohibited by a provision in the Homeland Security Act authorizing the agency to issue regulations prohibiting disclosures that would be “detrimental to the security of transportation.”

The high court majority rejected both arguments, finding on the first that regulations are not law and, on the second, that the provision in question “does not prohibit anything. On the contrary, it authorizes something—it authorizes the under secretary to ‘prescribe regulations.’ ”

Roberts acknowledged as “legitimate” the government’s concern that protecting individuals like McLean “would make the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA’s 60,000 employees.”

But he concluded, “They are concerns that must be addressed by Congress or the president, rather than by this court. Although Congress and the president each has the power to address the government’s concerns, neither has done so. It is not our role to do so for them.”

Justice Sonia Sotomayor, joined by Justice Anthony Kennedy, dissented, saying she would find MacLean’s disclosure covered by the Homeland Security Act provision.

With that provision, she wrote, “Congress has required agency action that would preclude the release of information ‘detrimental to the security of transportation.’ In so doing, Congress has expressed its clear intent to prohibit such disclosures. I would respect its intent, and hold that a disclosure contravening that mandate is ‘prohibited by law’ within the meaning of the WPA.”

Katyal said, “The court reaffirmed the common sense idea that agencies cannot hide their mistakes by regulating their way to try to evade the Whistleblower Protection Act. Today’s decision ensures that the Whistleblower Act will continue to stand as an important bulwark against government abuse.”

Agreeing, Matthew Tully of Tully Rinckey, who filed an amicus brief supporting MacLean on behalf of the Federal Law Enforcement Officers Association and two other organizations, said the high court delivered a “reality check” to agency leaders.

“You can’t make a regulation, call it a law, and use the regulation to punish whistleblowers,” he said. “If you want to make laws, quit and run for Congress. If you want to run an agency, be prepared to hear from employees who, thanks to today’s decision, can blow the whistle on government fraud, waste and mismanagement without fear of retaliation justified by semantics.”

IMAGE: Oct. 3, 2007 – Rancho Santa Margarita, California, U.S. – Former air marshal Robert T Maclean was fired for blowing the whistle on a TSA cost cutting plan to cut air marshals on the type of long distance flights targeted on 9/11. Mark Avery / ZUMA Press

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