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SCOTUS Leaning Toward Air Marshal Whistleblower in TSA Dispute?

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By William Peacock, Esq. on November 05, 2014 8:34 AM

With the obvious caveat of oral arguments not being a perfect or even good predictor of opinions to come, the tone in Tuesday's oral arguments in DHS v. MacLean seemed to be sympathetic towards Robert MacLean, the Air Marshal whistleblower, rather than his former employer, the Transportation Security Administration.

The legal issue is the conflict between the federal whistleblower law, which encourages employees to come forward when there is a "danger to public heath or safety" and the Aviation and Transportation Safety Act, which has its own national security goals and allows the government to make "Secret Security Information (SSI)" semi-classified, preventing its disclosure.

Of course, as Justice Sonia Sotomayor pointed out during oral arguments, "the facts are very much in [MacLean's] favor here." He blew the whistle on the TSA's attempt to pull all Air Marshals from flights after taking it up with his supervisors internally, plus the information wasn't classified as SSI until three years later.

'Specifically Prohibited by Law'

The Whistleblower Protection Act prohibits retaliation "because of any disclosure of information by an employee ... 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 ..."

The ATSA merely prohibits disclosure of information "if the Secretary of Transportation decides disclosing the information would ... be detrimental to transportation safety," a descriptor the Federal Circuit held was far too vague to be "specifically prohibited by law."

Neal Katyal, formerly the Acting U.S. Solicitor General, argued that point on behalf of MacLean. And Justice Breyer quipped that the phrase "seems to me could include everything from a spark plug that is deficient in the airplane to a terrorist."

"How would you decide it?" Breyer continued. "I mean, it sounds to me that that's quite a lot broader and so much can be detrimental to the security of an airplane."

Statute, Regulation, or Both?

In the Federal Circuit, it seemed like the government had conceded that "specifically prohibited by law" had to mean a statute. In fact, that court said that the "parties do not dispute that ... the disclosure must be prohibited by a statute rather than by a regulation."

And yet, on appeal to the Supreme Court, the government backtracked and argued that the statute mandated regulations and that the phrase "specifically prohibited by law" referred to statutes, judicial opinions, and regulations that were mandated by statute.

Justice Scalia forced the government's hand at one point, asking, "It wasn't prohibited by the statute until there were regulations, right?"

"That's correct, Your Honor. But there were regulations," Ian H. Gershengorn, a deputy solicitor general, responded.

"So it is prohibited by regulations. Let's not play games," Scalia concluded.

Chief Justice Roberts continued the tough line of questions, noting that the government's lawyer took a different position in the court of appeals: "He said, I'll be as clear as I can. Specifically prohibited by law here means statute."

Justice Ruth Bader Ginsburg got in on the action as well, asking, "So what is your position today? Before the Federal Circuit, it seems to have been this is statute, not regulations. Now it's some regulations, but we don't know whether regulations that are mandated or regulations that are merely authorized. What is it?"

A Fine Line

In the end, justices on both wings of the Court seemed to be leaning toward the stance that the statute alone didn't prohibit MacLean's disclosure, and likely, that "specifically prohibited by law" doesn't include regulations. But the justices also seemed to struggle with the outer limits of allowing whistleblowers to release national security information.

Hypotheticals about disclosure to "a reporter working for a foreign state-controlled news agency" and the use of executive orders instead of SSI regulations were tossed around. But overall, the tenor seemed to be in MacLean's favor, with only a bit of probing for a way to limit the Court's ruling left to determine.

Justice Sotomayor asked, "Are we going to get to a point where Congress has to look at every category of information every agency deals with and make a law prohibiting the disclosure of that individually?"

And Justice Kennedy added, "But the gravamen of your position is that after Congress enacted these statutes, anything that came within the WPA definition could be disclosed until Congress passed another statute? That's what you want us to hold?"

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