Supreme Court sides with former TSA air marshal

WASHINGTON — The Supreme Court ruled Wednesday that a former air marshal wasn't "specifically prohibited by law" to leak information about agency cutbacks

The 7-2 decision written by Chief Justice John Roberts represents a rare court victory for government whistle-blowers who expose dangers to health or safety.

The case involved Robert MacLean, an air marshal who flew undercover and armed, to thwart terrorists. When the Transportation Security Administration decided to reduce overnight flights for air marshals in 2003, MacLean leaked the news to MSNBC, which prompted congressional criticism before TSA reversed itself.

When his identity was revealed three years later, MacLean was fired for disclosing "sensitive security information," which violated TSA rules. But the federal Whistle-Blower Protection Act only disallows disclosures "specifically prohibited by law" or by executive order classifying the information as secret.

Although MacLean could not convince his supervisors, a Department of Homeland Security inspector general or the Merit Systems Protection Board that he was right, a federal appeals court ultimately ruled that his disclosure didn't violate a federal law, only an agency regulation.

The government appealed the case, asking the Supreme Court to overturn the lower court's decision and reinforce TSA's authority, but the high court upheld the appeals decision.

"The government argues that providing whistleblower protection to individuals like MacLean would 'gravely endanger public safety' by making the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA's 60,000 employees," Roberts wrote. "Those concerns are legitimate, but they must be addressed by Congress or the president, rather than by this court."

MacLean tweeted that he was "very honored & grateful" that the court decided the case, and said "great people" from non-governmental organizations, the Office of Special Counsel, Congress and the courts "made it happen."

"Today is a great day for the United States," MacLean tweeted. "It's not perfect, but we have THE GREATEST justice system ever in history."

Neal Katyal, a former acting solicitor general who argued the case for MacLean, said the decision a victory for all Americans who depend on federal workers to warn of bureaucratic errors that endanger security.

"Today's decision ensures that the Whistle-Blower Protection Act will continue to stand as an important bulwark against government abuse," said Katyal, of Hogan Lovells.

Justice Sonia Sotomayor, joined by Justice Anthony Kennedy, dissented by arguing that the law authorizing TSA said the agency "shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security ... if the under secretary decides that disclosing the information would ... be detrimental to the security of transportation."

"I part ways with the Court, however, when it concludes that (the law) does not itself prohibit the type of disclosure at issue here— the release of information regarding the absence of federal air marshals on overnight flights," Sotomayor wrote.

The decision was praised by lawyers who represent whistle-blowers.



Carolyn Lerner, who heads the federal Office of Special Counsel, an independent agency that protects workers from prohibited personnel practices, praised the decision for better defining whistle-blower protections.

"The Supreme Court made the right call in protecting the rights of brave federal whistleblowers who risk their own careers to inform the public about significant threats to public safety," Lerner said.

Matthew Tully, a lawyer who filed an argument in the case on behalf of groups including the Federal Law Enforcement Officers Association with 60,000 members in agencies such as the FBI and Drug Enforcement Administration, said an agency can't make a regulation and call it a law to punish whistle-blowers.

"The Supreme Court just delivered a reality check to agency leadership," said Tully of Tully Rinckey PLLC, which focuses on federal employment law. "If you want to run an agency, be prepared to hear from employees who, thanks to today's decision, can blow the whistle on government fraud, waste and mismanagement without fear of retaliation justified by semantics."

Richard Moberly, a professor and associate dean at the University of Nebraska College of Law, said the Supreme Court sided with employees in nine of 10 cases involving whistle-blower claims since 2005 to demonstrate that "whistle-blowing matters."

In addition, MacLean's case about security information comes at a time when the country is grappling with what is justified whistle-blowing and what deserves punishment, such as in cases involving leaks from Edward Snowden or Thomas Drake at the National Security Agency, Moberly said.

"It's right at the intersection of secrecy and whistle-blowing," Moberly said. "The court seems to be saying that we're far more comfortable with Congress and the politically accountable branches drawing the line and not allowing administrative agencies to make those rules."

While the case is a victory for whistle-blowers generally, MacLean still has a lengthy legal battle ahead. The U.S. Court of Appeals for the Federal Circuit, whose decision was upheld, had sent the case back to the Merit Systems Protection Board to determine whether the Whistle-Blower Protection Act applies to MacLean's specific case.

MacLean must still prove that he first tried to make to report his concerns to the appropriate personnel, that he had a reason to believe public safety was endangered and that TSA retaliated against him specifically for the disclosure, Tully said.

"We're still at step one of a 10-step process," Tully said.

The decision came as federal workers are increasingly worried about whistle-blowing.

Nearly one in five (19.5%) workers reported last year they didn't believe they could disclose a suspected violation of any law or regulation without fear of reprisal, according to Merit Systems Protection Board obtained by Tully's firm. That figure was the highest on record, according to Tully's firm.



The Office of Special Counsel received 1,129 whistle-blower cases in 2013. The agency received an average of 843 such cases each year from 2007 to 2013, according to agency data that Tully's firm compiled.

"It's a huge win employees because if the Supreme Court would have ruled against MacLean, it basically would have allowed agency heads to ban any type of disclosures," Tully said.