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News from the Supreme Court: TSA Whistleblower Wins!

News from the Supreme Court:  On January 21, 2015, the Supreme Court issued its decision in Dept. of Homeland Security v. MacLean, 574 U.S. ___, No. 13-894.  The Court, 7-2, ruled in favor of whistleblower Robert MacLean, upholding the findings below that the Transportation Security Administration (TSA) engaged in whistleblower reprisal when it unlawfully fired Mr. MacLean. 

The Court's decision is the latest stage in the long-running MacLean case, which was previously analyzed by Passman & Kaplan, P.C. in the Federal Legal Corner, and in this blog.

Mr. MacLean was removed from his position as a Federal Air Marshal (FAM) after allegedly disclosing an Agency decision temporarily cancelling FAMs' "remain overnight" missions to the press. The Agency based its removal on Mr. MacLean's disclosure of this information, which the Agency labeled as Sensitive Security Information (SSI). Mr. MacLean appealed his removal to the Merit Systems Protection Board (MSPB), raising an affirmative defense of whistleblower reprisal. The MSPB upheld the removal, which was then reversed by the U.S. Court of Appeals for the Federal Circuit.  The Agency then appealed to the Supreme Court.

Writing for the majority, Chief Justice Roberts affirmed the reasoning of the Federal Circuit below that the exclusion in the Whistleblower Protection Act (WPA) for disclosures "strictly prohibited by law" only refers to disclosures prohibited by statute.  The Court, based on a technical interpretation of the statutory text, held that a disclosure prohibition only found in regulations is not sufficient for the WPA exception to apply.  Because Mr. MacLean's specific disclosure was in alleged violation of a rule found in Agency regulations concerning SSI, and not expressly in the underlying statute allowing the Agency to issue SSI-related regulations, the Agency could not use the WPA exclusion to avoid Mr. MacLean's claim of whistleblower reprisal. 

In dissent, Justice Sotomayor (joined by Justice Kennedy) agreed with the majority that "strictly prohibited by law" referred only to statutes.  However, Justice Sotomayor disagreed with the majority on the issue of whether the statute authorizing TSA to promulgate its SSI regulations constituted a statutory prohibition on disclosure.  The majority had held that the SSI regulations provision gave too much discretion to TSA to define if and when disclosures were prohibited to constitute a 'statutory' prohibition; Justice Sotomayor argued that the provision was sufficiently specific and non-discretionary to be a 'statutory' prohibition.  Justice Sotomayor further noted that the majority's decision was narrow, and that slightly different phrasing in the statute would have produced a different result under the majority's reasoning.

Consistent with the Federal Circuit's decision below, Mr. MacLean's case will now be remanded back to the MSPB to decide whether Mr. MacLean's specific disclosures meet the requirements of protected whistleblowing under the WPA.

If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan to request an initial consultation.

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