Dept. of Homeland Security v. MacLean

Summarized by:

  • Court: United States Supreme Court
  • Area(s) of Law: Employment Law
  • Date Filed: January 21, 2015
  • Case #: 13-894
  • Judge(s)/Court Below: Roberts, C.J., delivered the Court’s opinion which Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan JJ., joined. Sotomayor, J. filed dissenting opinion which Kennedy, J., joined.
  • Full Text Opinion

Disclosure of sensitive security information to the media prohibited by a promulgated federal regulation is not a disclosure prohibited by law under the whistleblower protections of 5 U.S.C. §2302(b)(8)(A).

Respondent was a federal Air Marshall employed by the Transportation Security Administration (TSA). In the summer of 2003, during respondent’s employment with the TSA, he received a briefing detailing the threat of a possible terrorist attack utilizing commercial aircraft in the United States. The briefing outline that the threatened attack would most likely occur in the late summer of 2003. Respondent received a text message in August 2003 from TSA officials advising him that all overnight Air Marshall operations at his location had been canceled. Respondent learned that the operations had been canceled because of budget shortfalls and subsequently disclosed this information to a member of the media. Respondent was fired by the TSA in 2006 for disclosing sensitive security information and lost his subsequent challenge to the Merit Systems Protection Board. The Board held that respondent was not protected by the whistleblower protections under 5 U.S.C. §2302(b)(8)(A). Respondent appealed and the Federal Circuit vacated the Board’s decision.

The Court affirmed the Federal Circuit Court of Appeals and held that TSA regulation 49 CFR §1520.7(j), which prohibits TSA employees from disclosing information about specific aviation security measures, does not constitute a law that prohibits the disclosure of information for the purposes of 5 U.S.C. §2302(b)(8)(A). The Court observed that other sections of 5 U.S.C. §2302 state that a disclosure may be prohibited by a “law, rule, or regulation,” however §2302(b)(8)(A) applies only to disclosures prohibited by a “law.”

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