DEPARTMENT OF HOMELAND SECURITY v. MACLEAN

Legal Principle at Issue

Did a federal employee's disclosure of information received through a non-classified text message fall under the Whistleblower Protection Act? Or was it barred because it was specifically prohibited by law?

Action

The Supreme Court ruled 7-2 in favor of federal employee Robert MacLean, holding that his disclosure was not "specifically prohibited by law" because he violated a regulation, not a statute. The Whistleblower Protection Act only disallows protections if the disclosure is specifically barred by law, which Congress meant to refer to statutes — not agency rules or regulations.

Facts/Syllabus

In July 2003, the Transportation Security Administration briefed 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.

MacLean challenged his firing before the Merit Systems Protection Board, arguing that his disclosure was protected under the Whistleblower Protection Act, 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, which prohibits "the disclosure of information" that would be "detrimental to the security of transportation."

The U.S. Court of Appeals for the Federal Circuit vacated the Board’s decision, holding that Section 114(r)(1) of the Homeland Security Act did not apply.

Importance of Case

The decision reinforced protections for federal whistleblowers, clarifying that agencies cannot strip employees of protections afforded under the Whistleblower Protection Act just by issuing regulations prohibiting disclosures.