On Tuesday, November 4th, the US Supreme Court heard oral arguments in a former air marshal’s contention under the Whistleblower Protection Act of 1989 (WPA), 5 U.S.C. § 2302, that he was improperly fired because he blew the whistle on flight safety concerns. In 2003, MacLean complained internally about a TSA plan to remove air marshals from certain airline flights despite warnings of a hijacking plot. When his internal complaints led nowhere, he leaked the TSA plan to the media. His leak was later discovered and he was fired for disclosing what TSA characterized as “sensitive security information.”
MacLean sued under the WPA, which prohibits retaliation against employees by federal agencies for blowing the whistle on suspected illegal or dangerous acts. The statute encourages employees to come forward when there is a “danger to public health or safety.” In response, the Department of Homeland Security sought to invoke a statutory exception applying to employees who make disclosures “specifically prohibited by law.” The thorny issue in this case, however, is that MacLean’s disclosure was prohibited by TSA regulations but not specifically by statute.
So the Supreme Court must decide whether, as MacLean’s attorney put it in oral argument, agencies can be the fox guarding the henhouse by writing their own rules restricting whistleblowers. But the Court must also balance legitimate national security interests involved in the disclosure of sensitive information. And therein lies the struggle; protecting whistleblowers while also setting the outer boundaries of disclosure to safeguard national security information.
Department of Homeland Security v. MacLean, Case No. 13-894