Department of Homeland Security v. MacLean

Department of Homeland Security v. MacLean, 574 U.S. 383 (2015), was a United States Supreme Court case in which the court held that a whistleblower disclosure that is specifically prohibited by a rule or regulation is permitted because the disclosure is not "specifically prohibited by law" within the meaning of the statute protecting whistleblowers.^[1][2]

Department of Homeland Security v. MacLean
Supreme Court of the United States
Decided January 21, 2015
Full case name	Department of Homeland Security v. MacLean
Citations	574 U.S. 383 (more)
Holding
A whistleblower disclosure that is specifically prohibited by a rule or regulation is permitted because the disclosure is not "specifically prohibited by law" within the meaning of the statute protecting whistleblowers.
Court membership
Chief Justice John Roberts Associate Justices Antonin Scalia · Anthony Kennedy Clarence Thomas · Ruth Bader Ginsburg Stephen Breyer · Samuel Alito Sonia Sotomayor · Elena Kagan
Case opinions
Majority	Roberts, joined by Scalia, Thomas, Ginsburg, Breyer, Alito, Kagan
Dissent	Sotomayor, joined by Kennedy
Laws applied
5 U.S.C. § 2302(b)

Background

In 2002, Congress enacted the Homeland Security Act. That 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."^[a] Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of "sensitive security information,"^[b] which included "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations."^[c][1]

In July 2003, the TSA briefed all federal air marshals—including Robert J. MacLean—about a potential plot to hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA's decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization.^[1]

MacLean challenged his firing before the Merit Systems Protection Board. He argued 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." The Board held that MacLean did not qualify for protection under that statute because his disclosure was "specifically prohibited by law"—namely, by the Homeland Security Act. The Court of Appeals for the Federal Circuit vacated the Board's decision, holding that Section 114(r)(1) was not a prohibition within the meaning of the statute protecting whistleblowers.^[1]

Opinion of the court

The Supreme Court issued an opinion on January 21, 2015.^[1]

Later developments

Notes

1. 49 U. S. C. §114(r)(1)(C).
2. 67 Fed. Reg. 8351.
3. 49 CFR §1520.7(j).