The Supreme Court ruled against the Transportation Security Administration (TSA) this week in the whistleblower case of Department of Homeland Security v. MacLean. The question before the court was whether TSA regulations prohibiting the disclosure of Sensitive Security Information (SSI) converted the unauthorized disclosure of SSI into a disclosure “specifically prohibited by law” for purposes of the Whistleblower Protection Act (WPA), Section 2302(b)(8)(A). If so, the disclosure of SSI could never be protected by the WPA. The court held that MacLean, a former Federal Air Marshal whom TSA had fired, did not make a disclosure that was “specifically prohibited by law” when he publicly disclosed that TSA had entirely removed air marshals from certain long-distance flights as a cost-cutting measure – notwithstanding a hijacking alert. The court found that “when Congress used the phrase ‘specifically prohibited by law’ instead of ‘specifically prohibited by law, rule or regulation,’ it meant to exclude rules and regulations.” The court then held that “TSA’s regulations do not qualify as ‘law’ for purposes of Section 2302(b)(8)(A).”
AFGE filed an amicus curiae brief, or “friend of the court” brief, supporting MacLean and arguing that a bad decision could chill important, protected disclosures from not only Federal Air Marshals but also from AFGE’s Transportation Security Officers who provide front-line security for nearly all public air travel across the United States. AFGE also argued, along with counsel for MacLean and other prominent amici, that the plain language of the WPA did not encompass TSA’s regulations and that no law or Executive order specifically prohibited MacLean’s disclosure. The court’s decision means that TSA cannot use its regulations to determine which disclosures by employees are protected by the WPA and which disclosures are not protected because they are “prohibited by law.” While the court’s decision is narrow and does not change the statutory requirements of the WPA, the court’s decision is a significant whistleblower victory.