Opinion analysis: Justices adopt broad view of whistleblower protections in air marshal dispute
on Jan 21, 2015 at 2:45 pm
Given how the November 4 oral argument unfolded, the Supreme Court’s seven-to-two decision on Wednesday to side with a former air marshal-turned-whistleblower in Department of Homeland Security v. MacLean should hardly come as a surprise. Indeed, Chief Justice John Roberts’s sixteen-page opinion for the majority largely mimics MacLean’s brief in holding that (1) the exemption from the Whistleblower Protection Act for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by TSA regulations; and (2) the Aviation and Transportation Security Act of 2001 did not itself prohibit MacLean’s disclosure of alarming lapses in post-9/11 aviation security to a reporter. If there was any surprise in Wednesday’s decision, it was the unusual pairing of Justices Anthony Kennedy and Sonia Sotomayor in dissent – only the second time a dissent has featured that pair of Justices on their own. But whether there is a deeper lesson to take away from this strange line-up, the more immediate consequence of Wednesday’s decision is to clarify – and expand – federal whistleblower protections in a way that may well attract the attention, if not reprobation, of the political branches.
As we summarized in our argument preview, this case arose out of the unauthorized disclosures by Robert MacLean, then a TSA air marshal, of changes in air-marshal deployment patterns that, in MacLean’s view, seriously jeopardized post-9/11 aviation security. Although MacLean’s disclosures had the desired effect (the changes were scrapped), he was fired for disclosing “sensitive security information” (SSI) in violation of TSA regulations prohibiting such disclosure. MacLean challenged his termination on the ground that his disclosure was protected under the Whistleblower Protection Act of 1989 because he “reasonably believe[d]” that the leaked information disclosed “a substantial and specific danger to public health or safety.” The government’s response, which the Merit Systems Protection Board accepted, was not that MacLean was wrong on the merits, but rather that he was not entitled to claim whistleblower protection in the first place because his disclosure was “specifically prohibited by law,” to wit, the TSA regulations prohibiting the unauthorized disclosure of SSI. The Federal Circuit disagreed, holding that agency regulations, without more, were not “law” for purposes of the whistleblower statute. After the government unsuccessfully sought rehearing en banc in the Federal Circuit, the Supreme Court granted its petition for certiorari.
Writing for a unanimous Court as to the government’s first argument, Chief Justice Roberts quickly dispensed with the government’s theory – that the TSA regulations prohibiting unauthorized disclosure of SSI “specifically prohibited” MacLean’s disclosure “by law.” As he explained, the whistleblower statute repeatedly refers in other provisions (and, indeed, elsewhere in the very same sentence as the clause at issue) to “laws, rules, or regulations.” Thus, “Congress’s choice to say ‘specifically prohibited by law’ rather than ‘specifically prohibited by law, rule, or regulation’ suggests that Congress meant to exclude rules and regulations” from the whistleblower statute’s exemption. In the process, the majority rejected the government’s alternative argument that some regulations could satisfy the whistleblower statute’s exception, reaffirming that the exemption for disclosures “specifically prohibited by law” requires that the underlying prohibition must always be contained in the terms of a statute itself.
The majority then turned to the government’s alternative argument – that MacLean’s disclosures did violate a statute, to wit, the ATSA (the source of the TSA’s authority to promulgate the non-disclosure regulations). Again, Chief Justice Roberts made quick work of this reasoning: “This statute does not prohibit anything. On the contrary, it authorizes something—it authorizes the Under Secretary to ‘prescribe regulations.’ Thus, by its terms [the ATSA] did not prohibit the disclosure at issue here.” Although the government had argued that the statute prohibited MacLean’s disclosure insofar as it mandated the promulgation of such regulations, the majority responded that the authorizing language “affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure,” and how to do so.
It was on this point that Justice Sotomayor – joined by Justice Kennedy – dissented. As she argued, in the ATSA, “Congress has required agency action that would preclude the release of information ‘detrimental to the security of transportation.’ In so doing, Congress has expressed its clear intent to prohibit such disclosures.” For the majority, that intent was insufficient given that the statute did not bar the disclosures directly. Justice Sotomayor, however, would “decline to surrender so fully to sheer formalism, especially where transportation security is at issue and there is little dispute that the disclosure of air marshals’ locations is potentially dangerous.”
Although MacLean was, start to finish, a case about statutory interpretation, it seemed unlikely, as we suggested in our argument preview, that the Justices would be able completely to sidestep the specter of national security looming over the case – or the need to defer to the government on such matters. If nothing else, Justice Sotomayor’s dissent seemed to drive home that very concern. But although Chief Justice Roberts closed his opinion for the majority by agreeing that “[t]hose concerns are legitimate,” he emphasized that “they are concerns that must be addressed by Congress or the President, rather than by this Court.”
For the moment, then, the decision in MacLean clarifies that the Whistleblower Protection Act’s exemption for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by agency regulations – or even by statutes that command the agency to promulgate non-disclosure regulations. Instead, the statute must itself bar the disclosure for the disclosure to be “specifically prohibited by law.” Whether the political branches will accept the Chief Justice’s invitation to revisit such a broadening of whistleblower protections in general, or in national security cases specifically, remains to be seen.
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,” it is not enough for Congress to generally delegate to an administrative agency the power to bar that specific disclosure. Instead, the disclosure must be expressly barred by the statute itself. In this case, the Court held that a post-9/11 law enacted to expand aviation security authorities did not provide such an express prohibition, and so the government wrongly terminated a former air marshal after he disclosed alarming lapses in aviation security.