Department of Homeland Security v. MacLean

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The 2002 Homeland Security Act provides that the Transportation Security Administration (TSA) “shall prescribe regulations prohibiting the disclosure of information . . . if the Under Secretary decides that disclosur[e] would . . . be detrimental to the security of transportation,” 49 U.S.C. 114(r)(1)(C). TSA promulgated regulations prohibiting the unauthorized disclosure of “sensitive security information,” including “[s]pecific details of aviation security measures.” 49 CFR 1520.7(j). In 2003, TSA briefed all air marshals, including MacLean, about a potential plot to hijack passenger flights. A few days later, MacLean received from TSA a text message temporarily cancelling all overnight missions from Las Vegas. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal; he told a reporter about the decision. TSA fired him. The Merit Systems Protection Board rejected claims that his disclosure was whistleblowing activity under 5 U.S.C. 2302(b)(8)(A), which protects employees who disclose information that reveals “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety” unless disclosure was “specifically prohibited by law.” The Federal Circuit vacated. The Supreme Court affirmed. MacLean’s disclosure was not specifically prohibited by law because regulations do not qualify as “law” under the whistleblower statute. Interpreting the word “law” to include rules and regulations could defeat the purpose of the statute, allowing an agency to insulate itself simply by promulgating a regulation that “specifically prohibited” all whistleblowing. MacLean’s disclosure was not prohibited by Section 114(r)(1). That statute does not prohibit anything, but only authorizes TSA to “prescribe regulations.” View "Department of Homeland Security v. MacLean" on Justia Law