Federal Air Marshal Could Proceed With Whistleblower Lawsuit

In Department of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015), Robert J. MacLean became a federal air marshal for the TSA in 2001. In that role, MacLean was assigned to protect passenger flights from potential hijackings. In July 2003, the Department ofHomeland Security issued a confidential advisory about a potential hijacking plot by al Qaeda tobe executed by the end of summer 2003. A few days later, MacLean received a text messagefrom the TSA canceling all overnight missions from Las Vegas (where MacLean was stationed)until early August. MacLean believed that canceling those missions during a hijacking alert wasdangerous and illegal insofar as federal law required the TSA to put an air marshal on everyflight that “presents high security risks.” After MacLean learned from a supervisor that themissions had been canceled due to budgetary restrictions and that “nothing could be done,” hecontacted an MSNBC reporter and told him about the canceled missions. Following publicationof the MSNBC story, several Members of Congress criticized the cancellations and, within 24hours, the TSA reversed its decision and put air marshals back on the flights. MacLean wassubsequently fired for disclosing sensitive security information without authorization.

The MeritSystems Protection Board held that MacLean did not qualify for protection because hisdisclosure was “specifically prohibited by law.” However, the United States Court of Appealsfor the Federal Circuit vacated the Board’s decision, and the United States Supreme Court in thisopinion affirmed the Court of Appeals, holding that MacLean’s disclosure was not prohibited bythe TSA regulations because regulations do not qualify as “law” under the applicablewhistleblower statute.