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MacLean Files Opposition to Cert. in DHS Whistleblower Case

By William Peacock, Esq. on April 04, 2014 | Last updated on March 21, 2019

The Transportation Security Administration learns about a credible hijacking plot. It then pulls air marshals off of certain long-distance flights because of a budget shortfall. This was, in a word, stupid.

Robert MacLean was one of those air marshals. After going to his supervisors and other proper channels, and after he was rebuked with warnings about his career, he anonymously tipped off the press. He was later fired.

We've covered his case extensively, from the Federal Circuit's opinion in his favor, holding that the Whistleblower Protection Act applied to his case, to that court's denial of banc rehearing.

In January, the Department of Homeland Security submitted its petition for certiorari, arguing that applicable security regulations prohibited MacLean's disclosures and that the Federal Circuit's opinion "effectively permits individual federal employees to override the TSA's judgments about the dangers of public disclosure."

What was MacLean's response? Let's take a look at his Brief in Opposition:

Conceded Regulation Issue?

The WPA protects employees who disclose information "which the employee ... reasonably believes evidences ... a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law ..."

MacLean's brief begins by noting that the DHS has already conceded that "specifically prohibited by law" refers to statutes only, and not regulations promulgated pursuant to the agency's statutory directive. Indeed, the Federal Circuit noted:

"The parties do not dispute that, in order to fall under the WPA's 'specifically prohibited by law' proviso, the disclosure must be prohibited by a statute rather than by a regulation."

But even if the argument, which was repeatedly conceded below, can still be brought, the legislative history indicates that the WPA provision was specifically intended to apply to statutes, not regulations.

Statute v. Regulation: There Is a Difference

MacLean's brief notes that Congress rejected an initial draft of the relevant WPA provision that would have created a broader exception to whistleblower protection. The original drafts were phrased "prohibited by law, rule or regulation," while the final version of statute exempts only disclosures "specifically prohibited by law" or certain Executive orders, 5 U.S.C. § 2302(b)(8)(A).

"[S]pecifically prohibited by law," a Conference Report cited by the brief explains, "does not refer to agency rules and regulations." (See page 5 of this PDF of the report.)

The Plain-English Takeaway

There is no statute that specifically prohibits MacLean's disclosures, which he made because he "reasonably believe[d]" the agency's actions presented "a substantial and specific danger to public heath or safety." Even if there was a regulation that applied (likely 49 C.F.R. Pt. 1520, which prohibits the disclosure of "Sensitive Security Information"), his initial disclosure was not classified as SSI until after the fact.

We've been shocked by the Supreme Court before, but this seems like a sure denial of certiorari at this point, both because of the Federal Circuit's sound ruling and because there is no circuit split whatsoever.

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