Feds Try to Take Air Marshal Whistleblower's Case to SCOTUS

By William Peacock, Esq. on January 29, 2014 | Last updated on March 21, 2019

Last year, the Federal Circuit gave us that warm-and-fuzzy feeling. You know the feeling -- it's the one you get at the end of the movie where the good guy wins. That feeling.

Robert MacLean was a federal air marshal. Shortly after learning of a hijacking plot, the Transportation Security Administration (TSA) decided to pull air marshals off of certain flights. If that sounds like an idiotic response to you, you're simpatico with MacLean, who first complained to his supervisors, then leaked the plan to MSNBC.

Long story short: MacLean was fired, even though the information wasn't classified as Sensitive Security Information (SSI) until after he leaked it. Fortunately, as we reported last year, the Federal Circuit came to the rescue, holding that the Whistleblower Protection Act could apply to his case, and later denied an en banc rehearing. The government is now petitioning for Supreme Court review.

Statute. Law. Regulation. Whatever.

The WPA protects employees who disclose information "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 ..."

By law.

The Aviation and Transportation Security Act (ATSA), the enabling statute that allows the agency to promulgate confidentiality regulations, prohibits disclosure of information "if the Secretary of Transportation decides disclosing the information would ... be detrimental to transportation safety."

The Federal Circuit felt that the ATSA was not sufficiently specific and that regulations, while having the force of law, were trumped by actual legislation, specifically the WPA.

SCOTUS Petition for Cert.

The government, in its petition for certiorari, noted that the Federal Circuit called this "'a very close case,' because the mandate included a direct 'charge' to the agency 'to prescribe regulations pursuant to specific criteria (i.e., only information that would be detrimental to transportation safety).'" However, because the statute made the authority to make disclosure regulations discretionary, it wasn't sufficiently specific to overcome the WPA.

The Federal Circuit's decision on the "close call" "effectively permits individual federal employees to override the TSA's judgments about the dangers of public disclosure," the government argues in its brief. "The Federal Circuit's decision seriously undermines the effectiveness of the congressionally man-dated SSI regime, invites individual federal employees to make disclosures that will threaten public safety, and warrants this Court's immediate review."

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