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Ex-Air Marshal MacLean Protected as Whistleblower, SCOTUS Finds

By Mark Wilson, Esq. on January 21, 2015 | Last updated on March 21, 2019

In 2003, an air marshal named Robert MacLean went to the press with a story that the TSA was ineffectual at protecting us from potential airplane hijackings. He was eventually fired, leading to a whistleblower retaliation lawsuit against the TSA.

The TSA had always maintained that MacLean shouldn't get whistleblower protection because he disclosed internal policies in violation of federal law, obviating his whistleblower status. In a 7-2 decision issued today, the Supreme Court sided with MacLean.

When Is a Law a Law?

What is a "law," really? MacLean's status as a whistleblower hinges on a single sentence in 5 USC 2302, which allows whistleblowers to claim such status unless their disclosure is "specifically prohibited by law."

MacLean's disclosure amounted to this: The TSA received a report in 2003 that terrorists might hijack some planes. A few days later, the TSA canceled all overnight air marshal missions from Las Vegas because of budget cuts. MacLean thought this was dangerous and illegal. He told his supervisors, who didn't care, and then he told MSNBC.

The TSA had two arguments as to why MacLean's statements weren't protected. First, the disclosure was prohibited by a federal regulation, which is a law. Second, the implementing regulation was authorized by a federal statute.

On the first argument, Chief Justice Roberts was pretty clear: "The answer is no." A regulation is not a law for the purposes of this statute. Congress is presumed to know how to write legislation, and instead of using "law, rule, or regulation," as it has done in other parts of the U.S. Code (and nine times in that same section), it instead used the single word "law" in 5 USC 2302. That must mean that Congress intended only for laws that are not rules and regulations to apply.

What about the statute authorizing the creation of that regulation? Clearly a statute is a "law." That's true, but Roberts pointed out, "[t]his statute does not prohibit anything." Like most statutes of its type, 49 USC 114 establishes the TSA, its governing framework, and then authorizes the TSA to promulgate regulations. Subsection (r) specifically calls for the TSA to "prescribe regulations prohibiting the disclosure of information" if the TSA decides that information shouldn't be disclosed. Such an enormous discretion-chasm means that the statute can't possibly be controlling here.

Even though the government played its national security card, Roberts was having none of it. "Those concerns are legitimate. But they are concerns that must be addressed by Congress or the President, rather than by this Court," he said.

Dissent: It's Specific Enough

Justice Sotomayor, joined by Justice Kennedy, disagreed that 49 USC 114(r)(1) was so nonspecific that it couldn't apply to this situation. Focusing on its mandatory language (that the TSA "shall" prescribe regulations prohibiting disclosure of information), Sotomayor concluded that the statute "does not merely authorize the TSA to promulgate regulations; it directs it to do so, and describes what those regulations must accomplish."

Not that we want to disagree with Sotomayor (we aren't Supreme Court justices, after all), but the statute establishes three criteria the TSA must use in determining whether to "prescribe regulations prohibiting the disclosure of information." The TSA must create those regulations if (and the statute is written in the disjunctive) it thinks the criteria are met. Theoretically, the TSA could conclude that none of the criteria are met and that no regulations are warranted.

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