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Argument preview: How much control do agencies have over what whistleblowers may disclose?

The legal issue the Justices will confront on Tuesday when they hear oral argument in Department of Homeland Security v. MacLean is easy enough to describe: When a federal statute bars whistleblowers from making disclosures that are “specifically prohibited by law,” does that bar also apply to disclosures prohibited by otherwise valid agency regulations – or does it only apply to disclosures expressly barred by Acts of Congress? Behind this outwardly straightforward question of statutory interpretation, though, lurk national security considerations on both sides; the government’s case rests largely on its claimed need to broadly protect sensitive security information from unauthorized disclosure, while the underlying whistleblowing highlighted alarming (and since corrected) deficiencies in post-September 11 aviation security.

Inasmuch as the national security undertones of Tuesday’s argument are (and will likely be) impossible to miss, the statute at the heart of the case applies to most government whistleblowers – especially those not in the national security arena. Thus, even if security concerns arise during Tuesday’s argument (and in the Justices’ ultimate disposition of the case), the irony of the case is that the answer the Justices ultimately provide to the statutory question presented will have significant implications for government whistleblowing in general, especially in cases having nothing whatsoever to do with protecting the national defense.


The respondent, Robert J. MacLean, was working as an air marshal for the Transportation Security Administration (TSA) in 2003 when he received a text message on his government-issued phone which led him to conclude that, for a specific period of time, there would no longer be federal air marshals on overnight flights.  MacLean complained to both his supervisor and the inspector general of the Department of Homeland Security that he believed such a measure was not in the best interests of public safety. When he did not receive a satisfactory response, he decided to leak the details of the text message to an MSNBC reporter, in order to create public backlash and prevent the policy change from taking effect. Although MacLean succeeded on both fronts, the government soon ascertained his identity after he appeared in an NBC Nightly News story without an adequate disguise. He was subsequently removed from his position for disclosing “Sensitive Security Information” (SSI) – to wit, information on the deployment of air marshals, without authorization. And whereas SSI is not classified (and so its unauthorized disclosure is not itself illegal), a range of regulations – including the TSA regulation pursuant to which MacLean was terminated – prohibit its disclosure by government officers without proper authorization.

MacLean then sought to challenge his removal before the Merit Systems Protection Board (MSPB), on the ground that his disclosure of the text message was protected under the Whistleblower Protection Act of 1989 (WPA), because he “reasonably believe[d]” that the leaked information disclosed “a substantial and specific danger to public health or safety.” The government argued, in response, that the WPA did not prevent MacLean’s termination because his disclosure was “specifically prohibited by law,” since it contravened the TSA regulations barring the unauthorized disclosure of SSI, which were specifically authorized by the Aviation and Transportation Security Act of 2001 (ATSA). The MSPB sided with the government, concluding that the WPA’s ban on disclosures “specifically prohibited by law” encompassed “information that is specifically prohibited from disclosure by a regulation promulgated pursuant to an express legislative directive.” Because the TSA’s regulatory ban on SSI disclosure was a valid exercise of its delegated authority, and because the ATSA was a specific delegation of disclosure-prohibiting authority to the TSA, the MSPB concluded that MacLean was lawfully terminated.

On appeal, a three-judge panel of the Federal Circuit unanimously vacated the MSPB’s ruling and remanded for further proceedings. Although the court of appeals agreed that the TSA regulation was valid and prohibited MacLean’s disclosure, it disagreed that the MacLean’s disclosure was “specifically prohibited by law” under the WPA. Although “[r]egulations promulgated pursuant to Congress’s express instructions would qualify as specific legal prohibitions,” the court held that, “given the clarity of the statutory language and legislative intent behind the WPA’s specificity requirement, the parameters set by Congress are not enough to push the ATSA over that threshold.” After unsuccessfully petitioning for rehearing en banc, the government petitioned for certiorari, which the Supreme Court granted in May.

The arguments

Arguing that the Federal Circuit’s decision is “wrong” and “dangerous,” the government’s merits brief focuses on a two-pronged argument: (1) “the phrase ‘by law’ is presumed to include both statutes and substantive regulations that have the force and effect of law”; and (2) even if the WPA meant to only reference disclosures prohibited by specific statutes, the ATSA satisfies that standard in specifically requiring the TSA to promulgate SSI non-disclosure regulations in language codified at 49 U.S.C. § 114(r)(1). That provision specifies that the Under Secretary of Transportation for Security “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the [ATSA]” when disclosure would, among other things, “be detrimental to the security of transportation.”

The language of Section 114(r)(1) is instructive, the Solicitor General argues, because of the Supreme Court’s 1975 decision in Administrator, FAA v. Robertson. There, the Court interpreted the Freedom of Information Act’s reference to disclosures “specifically exempted from disclosure by statute” to encompass regulations promulgated by the FAA under the Federal Aviation Act of 1958, a statute that authorized the FAA to exercise broad discretion in determining whether certain information should be disclosed. If the ensuing FAA nondisclosure regulations satisfied FOIA’s reference to disclosures “specifically exempted from disclosure by statute,” the Solicitor General explains, then “the applicability of the [WPA] proviso in the circumstances of this case thus follows a fortiori from Robertson.” In other words, the Solicitor General’s argument is that a statute can “specifically prohibit” the disclosure of certain information by delegating authority to an agency to promulgate regulations that specifically prohibit such disclosures – indeed, that Robertson so held. Thus, even if the term “specifically prohibited by law” only applies to statutory prohibitions, the ATSA – and not the TSA regulations promulgated pursuant to it – satisfies that requirement through Section 114(r)(1).

Bolstering this legal analysis, the government’s brief also invokes a range of policy considerations, suggesting that the Federal Circuit’s decision, if left intact, would create perverse incentives for government employees who reasonably – but wrongly – believe they are disclosing information that is in the public interest. And insofar as the court of appeals was motivated by a concern that the TSA might apply its regulatory authority to deter legitimate disclosures, the Solicitor General argues that “Congress can address—and has, in fact, addressed—that concern.”

In response, MacLean, represented by former acting Solicitor General Neal Katyal (and joined by a diverse and wide-ranging cohort of amici), focuses on the language of the ATSA’s delegation, arguing that “that law does not prohibit anything at all—it merely allows DHS ‘to prescribe regulations prohibiting the disclosure of information.’” Moreover, MacLean argues, “even if § 114(r) were somehow a prohibition, its broad authorization for TSA to shield information if the agency decides disclosure would be ‘detrimental to the security of transportation’ could not possibly qualify as the specific prohibition the WPA requires.”

As for the government’s reliance upon the Court’s interpretation of similar language in FOIA to encompass certain regulations in Robertson, MacLean seeks to distinguish Robertson, arguing that “Robertson . . . relied entirely on the Court’s understanding of FOIA’s legislative history and purpose. Because FOIA and the WPA do not share the same purpose or history, Robertson and the other FOIA-related analysis DHS invokes say little about how this Court should interpret the WPA—much less how § 114(r) could do something its text plainly does not do.” Instead, the key, according to MacLean, is the language and history of Section 114(r), which provide no support for the conclusion that Congress specifically intended to exempt SSI disclosures from whistleblower protections. Conceding that some statutes could manifest such intent through rulemaking delegations to agencies, MacLean’s brief highlights examples of such statutes to illustrate the critical silence of the ATSA on that point.

Finally, like the government, MacLean’s brief concludes with policy arguments all its own – emphasizing why the vague nature and flexible enforcement of “agency-made regimes like SSI” underscore why the WPA was meant to exclude them “from the specific prohibitions exempted by the WPA,” especially when, as in cases like MacLean’s, the effect is to “preserve government employees’ freedom to warn of . . . potentially disastrous bureaucratic errors.”


MacLean certainly seems to have the better of the first argument – that the WPA’s reference to disclosures “specifically prohibited by law” only applies to statutory prohibitions, and not prohibitions contained exclusively in administrative regulations. To similar effect, the national security considerations repeatedly relied upon by the government seem a bit overstated, since SSI is not classified – and since there is no question that a range of federal laws do expressly prohibit the unauthorized disclosure of classified information, and would therefore satisfy the WPA’s proviso.

Instead, the harder question is whether a statute can satisfy that WPA proviso if it merely delegates authority to promulgate nondisclosure regulations to an agency in general (as the government argues Congress did in Section 114(r)(1)), or whether, as MacLean argues, such a delegation will only satisfy the WPA when it reflects Congress’s specific intent to authorize the agency to displace whistleblower protections. Put more simply, can Congress fairly be said to have specifically exempted a disclosure from whistleblower protections when it does nothing more than authorize an agency to prohibit the disclosure in the abstract? The answer to that question will surely drive the result in this case. And given the potential significance of either an affirmative or negative conclusion, it will almost as certainly spark calls for Congress to revisit the WPA to clarify its applicability to nondisclosure regulations regardless of how the Court rules.

Plain English: Federal whistleblower laws bar the government from firing employees who disclose to the public matters of significant public concern unless that disclosure is “specifically prohibited by law.” For a disclosure to be “specifically prohibited by law,” must an Act of Congress expressly bar that specific disclosure, or is it enough for Congress to generally delegate to an administrative agency the power to bar that specific disclosure?

[Correction:  The original version of this preview indicated that, based on a text message, MacLean concluded that, for a particular time period, federal air marshals would not work on overnight flights originating in Las Vegas.  However, the text has been changed to refer to all overnight flights during a specific time period.]

Recommended Citation: Steve Vladeck, Argument preview: How much control do agencies have over what whistleblowers may disclose?, SCOTUSblog (Oct. 31, 2014, 12:00 PM),