Supreme Court Decides TSA Whistleblowing Case on Statutory Construction

On Wednesday, the Supreme Court held that it violated a federal whistleblowing statute to dismiss a TSA agent for disclosing to the media in violation of a specific TSA regulation that air marshals had been pulled from overnight flights during a hijacking security warning.  DHS v. MacLean, No. 13-894 (1-21-15).  In that case, the whistleblowing statute at issue prohibited adverse employment actions against employees who disclosed information which they reasonably believed reflected a “violation of any law, rule or regulation” or “a substantial and specific danger to public health or safety” unless the disclosure was “specifically prohibited by law” or by an Executive order "in the interest of national defense or the conduct of foreign affairs.” The Court rejected the government's argument that the agent’s disclosure in violation of a TSA regulation came within the exception for disclosures “specifically prohibited by law” because the statute’s use of “law, rule, or regulation” and “by an Executive Order” meant that Congress did not equate in that statute “law” with “regulation.”  Therefore, the TSA regulation did not fit within the whistleblowing statute’s exception for “law.”   In addition, it would defeat the purpose of the whistleblowing statute to permit an agency to prohibit whistleblowing by regulation.  Finally, the statute underlying the TSA regulation did not specifically prohibit the disclosure of the marshal assignment information, and so, did not fit within the exception either.      In dissent, two justices would have found the Homeland Security Act to fit within the whistleblowing exception for “law” because the TSA had been mandated by that statute to promulgate the regulation prohibiting the disclosure of sensitive security information.

According to the Court’s opinion, the plaintiff defended his disclosure of TSA air marshal assignments on the grounds “that his disclosure was whistleblowing activity under 5 U. S. C. §2302(b)(8)(A), which protects employees who dis­close information that reveals “any violation of any law, rule, or regu­lation,” or “a substantial and specific danger to public health or safe­ty.”  In particular, the statute prohibits adverse employment actions because of:

 (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;

His disclosure violated a TSA regulation which was authorized by the Homeland Security Act, which had directed the TSA to “‘prescribe regulations prohibiting the disclosure of infor­mation . . . if the Under Secretary decides that disclosur[e] would . . . be detrimental to the security of transportation.’ 49 U. S. C. §114(r)(1)(C).”   Accordingly, the “TSA promulgated regula­tions prohibiting the unauthorized disclosure of “sensitive security in­formation,” including “[s]pecific details of aviation security measures . . . [such as] information concerning spe­cific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations,” 49 CFR §1520.7(j).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.