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Grant of the Week: Air Marshal Whistleblower Meets DHS Regs

By William Peacock, Esq. | Last updated on

You've heard of Robert MacLean, right? If not, you haven't been paying attention to our Federal Circuit blog. (We'll give you a moment to bookmark it.)

In 2003, the Transportation and Security Administration decided to pull marshals from long-distance flights, even though the agency had recently learned of a credible threat of a potential hijacking plot. MacLean protested the move through the proper channels, but when his protests were ignored, he leaked the information to the press. After a second leak led to his unmasking, he was fired for disclosing sensitive security information.

We've covered his case extensively, from the Federal Circuit's opinion in his favor, holding that the Whistleblower Protection Act applied to his case, to that court's denial of banc rehearing. We also covered the government's petition for certiorari and MacLean's response

Why the exhaustive coverage? This is a huge case for national security and whistleblower protections.

Fed. Cir and the Whistleblower Protection Act

The WPA prohibits retaliation "because of any disclosure of information by an employee ... which the employee ... reasonably believes evidences ... a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law ..."

The question, before the Federal Circuit, was whether either TSA regulations or the Aviation and Transportation Security Act (ATSA), which enabled those regulations, specifically prohibited such disclosures by law.

As the Federal Circuit noted, the "parties do not dispute that, in order to fall under the WPA's 'specifically prohibited by law' proviso, the disclosure must be prohibited by a statute rather than by a regulation." That leaves the ATSA, the enabling statute, as the only applicable law.

The ATSA's prohibits disclosure of information "if the Secretary of Transportation decides disclosing the information would ... be detrimental to transportation safety," but according to the Federal Circuit, that isn't specific enough to meet the WPA exemption.

Because his disclosures weren't prohibited by law, the Federal Circuit remanded to the Merit Systems Protection Board to determine whether he reasonably believed it was a safety issue, an issue which seems like a foregone conclusion, especially considering the concurrence that highlights the "substantial evidence that he was not motivated by personal gain but by the desire to protect the public."

TSA Un-Concedes in Cert. Petition

The most interesting issue in the government's petition for certiorari, and in MacLean's response, was the discussion of whether the regulations were sufficient to meet the WPA exemption for "not specifically prohibited by law."

The government's petition argued that the regulations sufficed, and that the Federal Circuit's decision "effectively permits individual federal employees to override the TSA's judgments about the dangers of public disclosure."

MacLean's response noted that the regulation or statute issue was already conceded in the Federal Circuit (see above), and besides, the legislative history indicates that Congress wished to limit the application of the WPA to statutes only, as the initial rejected drafts of the law applied to "law, rule, or regulation" instead of the current application to "law" and an assortment of listed Executive Orders.

Cert. Granted

On Monday, the court granted certiorari [PDF] in Department of Homeland Security v. MacLean. The question presented is: "whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure 'specifically prohibited by law,' can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information."

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