On January 21, 2015, the U.S. Supreme Court decided Department of Homeland Security v. MacLean, holding that an Air Marshal was entitled to whistleblower status after disclosing plans to remove Air Marshals from certain long-distance flights because his disclosure was not specifically prohibited by law.
MacLean was an Air Marshal. In 2003, after being briefed on a specific threat to hijack passenger flights, MacLean was informed that all overnight missions for Air Marshals from his home city of Las Vegas were being cancelled as a cost-cutting measure. He believed that cancelling those missions was both unwise and illegal and, after failing to obtain relief through other channels, he disclosed the cancellation of the missions to a reporter. He was fired as an Air Marshal for making this disclosure. He appealed to the Merit Systems Protection Board, claiming whistleblower status, but the agency denied his claim after holding that his disclosure was “specifically prohibited by law,” precluding whistleblower status under 5 U.S.C. § 2302. The Federal Circuit reversed, holding that his actions were not specifically prohibited by law.
The Supreme Court affirmed the Federal Circuit, concluding that MacLean’s disclosures were not “specifically prohibited by law.” The Department of Homeland Security had issued regulations prohibiting MacLean’s disclosure, but these regulations do not qualify as “law” under the statute. Under principles of statutory interpretation, “law” in 5 U.S.C. § 2302 refers only to statutes, because elsewhere in the same provision Congress used the phrase “law, rule, or regulation” when it intended to refer to regulations in addition to statutes. Additionally, the broad reading sought by Homeland Security would allow an agency, by rule, to defeat whistleblower protections altogether merely by promulgating a regulation prohibiting whistleblowing.
The Court also rejected Homeland Security’s argument that the enabling statute requiring Homeland Security to “prescribe regulations” prohibiting disclosure of sensitive information constituted the specific prohibition referenced in the whistleblower statute. To the contrary, the Court concluded that language only authorized promulgation of regulations; it did not prohibit anything. The Court recognized Homeland Security’s argument that the ruling in this case could endanger public safety, but the Court stated that any such danger would have to be addressed by Congress or the Executive Branch.
The Court affirmed the Federal Circuit.
The Chief Justice delivered the opinion of the Court, in which Justices Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan joined. Justice Sotomayor dissented, joined by Justice Kennedy.