Opinion analysis: Justices adopt extended perspective of whistleblower protections in …

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Given how a Nov 4 verbal evidence unfolded, a Supreme Court’s seven-to-two preference on Wednesday to side with a former atmosphere marshal-turned-whistleblower in Department of Homeland Security v. MacLean should frequency come as a surprise. Indeed, Chief Justice John Roberts’s sixteen-page opinion for a infancy mostly mimics MacLean’s brief in holding that (1) a grant from a Whistleblower Protection Act for disclosures “specifically taboo by law” does not request to disclosures taboo usually by TSA regulations; and (2) a Aviation and Transportation Security Act of 2001 did not itself demarcate MacLean’s avowal of shocking lapses in post-9/11 aviation confidence to a reporter. If there was any warn in Wednesday’s decision, it was a surprising pairing of Justices Anthony Kennedy and Sonia Sotomayor in gainsay – usually the second time a gainsay has featured that span of Justices on their own. But either there is a deeper doctrine to take divided from this bizarre line-up, a some-more evident outcome of Wednesday’s preference is to explain – and enhance – sovereign whistleblower protections in a approach that might good attract a attention, if not reprobation, of a domestic branches.


As we summarized in a evidence preview, this box arose out of a unapproved disclosures by Robert MacLean, afterwards a TSA atmosphere marshal, of changes in air-marshal deployment patterns that, in MacLean’s view, severely jeopardized post-9/11 aviation security. Although MacLean’s disclosures had a preferred outcome (the changes were scrapped), he was dismissed for disclosing “sensitive confidence information” (SSI) in defilement of TSA regulations prohibiting such disclosure. MacLean challenged his stop on a belligerent that his avowal was stable underneath a Whistleblower Protection Act of 1989 since he “reasonably believe[d]” that a leaked information disclosed “a estimable and specific risk to open health or safety.” The government’s response, that a Merit Systems Protection Board accepted, was not that MacLean was wrong on a merits, though rather that he was not entitled to explain whistleblower insurance in a initial place since his avowal was “specifically taboo by law,” to wit, a TSA regulations prohibiting a unapproved avowal of SSI. The Federal Circuit disagreed, holding that group regulations, but more, were not “law” for functions of a whistleblower statute. After a supervision unsuccessfully sought rehearing en banc in a Federal Circuit, a Supreme Court postulated a petition for certiorari.

The Decision

Writing for a unanimous Court as to a government’s initial argument, Chief Justice Roberts fast dispensed with a government’s speculation – that a TSA regulations prohibiting unapproved avowal of SSI “specifically prohibited” MacLean’s avowal “by law.” As he explained, a whistleblower supervision regularly refers in other supplies (and, indeed, elsewhere in a really same judgment as a proviso during issue) to “laws, rules, or regulations.” Thus, “Congress’s choice to contend ‘specifically taboo by law’ rather than ‘specifically taboo by law, rule, or regulation’ suggests that Congress meant to bar manners and regulations” from a whistleblower statute’s exemption. In a process, a infancy deserted a government’s choice evidence that some regulations could prove a whistleblower statute’s exception, reaffirming that a grant for disclosures “specifically taboo by law” requires that a underlying breach contingency always be contained in a terms of a supervision itself.

The infancy afterwards incited to a government’s choice evidence – that MacLean’s disclosures did violate a statute, to wit, a ATSA (the source of a TSA’s management to publicize a non-disclosure regulations). Again, Chief Justice Roberts done discerning work of this reasoning: “This supervision does not demarcate anything. On a contrary, it authorizes something—it authorizes a Under Secretary to ‘prescribe regulations.’ Thus, by a terms [the ATSA] did not demarcate a avowal during emanate here.” Although a supervision had argued that a supervision taboo MacLean’s avowal insofar as it mandated a event of such regulations, a infancy responded that a sanctioning denunciation “affords estimable option to a TSA in determining either to demarcate any sold disclosure,” and how to do so.

It was on this indicate that Justice Sotomayor – assimilated by Justice Kennedy – dissented. As she argued, in a ATSA, “Congress has compulsory group movement that would obviate a recover of information ‘detrimental to a confidence of transportation.’ In so doing, Congress has voiced a transparent vigilant to demarcate such disclosures.” For a majority, that vigilant was deficient given that a supervision did not bar a disclosures directly. Justice Sotomayor, however, would “decline to obey so entirely to perfect formalism, generally where travel confidence is during emanate and there is small brawl that a avowal of atmosphere marshals’ locations is potentially dangerous.”


Although MacLean was, start to finish, a box about orthodox interpretation, it seemed unlikely, as we suggested in a evidence preview, that a Justices would be means totally to avoid a ghost of inhabitant confidence appearing over a box – or a need to defer to a supervision on such matters. If zero else, Justice Sotomayor’s gainsay seemed to expostulate home that really concern. But nonetheless Chief Justice Roberts sealed his opinion for a infancy by similar that “[t]hose concerns are legitimate,” he emphasized that “they are concerns that contingency be addressed by Congress or a President, rather than by this Court.”

For a moment, then, a preference in MacLean clarifies that a Whistleblower Protection Act’s grant for disclosures “specifically taboo by law” does not request to disclosures taboo usually by group regulations – or even by principle that authority a group to publicize non-disclosure regulations. Instead, a supervision contingency itself bar a avowal for a avowal to be “specifically taboo by law.” Whether a domestic branches will accept a Chief Justice’s invitation to revisit such a broadening of whistleblower protections in general, or in inhabitant confidence cases specifically, stays to be seen.

Plain English:

Federal whistleblower laws bar a supervision from banishment employees who divulge to a open matters of poignant open regard unless that avowal is “specifically taboo by law.” For a avowal to be “specifically taboo by law,” it is not adequate for Congress to generally nominee to an executive group a energy to bar that specific disclosure. Instead, a avowal contingency be specifically barred by a supervision itself. In this case, a Court hold that a post-9/11 law enacted to enhance aviation confidence authorities did not yield such an demonstrate prohibition, and so a supervision poorly consummated a former atmosphere organise after he disclosed shocking lapses in aviation security.

Posted in Department of Homeland Security v. MacLean, Featured, Merits Cases

Recommended Citation:
Steve Vladeck,
Opinion analysis: Justices adopt extended perspective of whistleblower protections in atmosphere organise dispute,
SCOTUSblog (Jan. 21, 2015, 2:45 PM),

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