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SCOTUS Grants Cert in Air Marshal's Whistleblower Case

By Gabriella Khorasanee, JD on May 27, 2014 3:58 PM

My colleague William Peacock has covered the case of the discharged Federal Air Marshal and his questionable defense to the Whistleblower Protection Act for some time, and in his last article, he reasonably bet on a cert. denial.

But, the Supreme Court likes to surprise us, and in an unforeseen twist, has granted cert. in what we all thought was (for once), a clear case.

Department of Homeland Security v. MacLean -- Background

Robert J. MacLean became a Federal Air Marshal ("Marshal") in 2001. In July 2003, after he and all other Marshals received briefing about a potential hijacking plot, the Transportation Security Administration ("TSA") sent an unencrypted text message to all Marshals cancelling all missions for Marshals on flights to Las Vegas through August.

MacLean didn't think this was a good idea and approached his supervisors, but they did nothing. He leaked the info to an MSNBC reporter, whose report garnered public and political attention, resulting in the TSA withdrawing the directive. While MacLean was investigated for another problematic action, the TSA learned that he had disclosed sensitive security information ("SSI") -- the Las Vegas flight directive -- which was labeled as SSI only after it had already been sent.

Department of Homeland Security v. MacLean -- Federal Circuit

MacLean was fired, and challenged his removal before an Administrative Judge and the Merit Systems Protection Board ("Board"), which all affirmed his removal. On appeal to the Tenth Circuit, MacLean raised many arguments, but only one was successful -- his affirmative defense that under the Whistleblower Protection Act protected his disclosure because it was "not specifically prohibited by law."

The Federal Circuit held that because the TSA prohibited disclosure of SSI through a regulation, not a statute, it was not prohibited by "law." To support its argument, the court relied on the legislative history, where the original language in the draft reading "specifically prohibited by law, rule, or regulation" was changed to just read "specifically prohibited by law."

Department of Homeland Security v. MacLean -- Cert Granted

While the Federal Circuit's reasoning is clear, after a careful reading of the Federal Circuit's opinion, we're beginning to see why the Supreme Court granted cert. Basically, the question is really what is "law?" The grey area was noted by the Federal Circuit, calling it a "close case." The court noted that the case

appears to fall in the middle of the spectrum of statutes flanked at opposite ends by (a) those that fall squarely under the WPA's "specifically prohibited by law" proviso ... and (b) those in which Congress delegates legislative authority to an administrative agency without circumscribing the agency's discretion.

And, absent a circuit split, we're thinking that's why the Supreme Court granted cert., but we won't know the answer until the next term.

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