U.S. Supreme Court will hear whistleblower case, DHS v. Robert MacLean

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Robert_MacLean,_U.S._Air_Force,_September_1988

The U.S. Supreme Court has decided to hear the federal government’s appeal of a lower court ruling favoring TSA whistleblower Robert MacLean. MacLean was terminated by the Transportation Security Administration after he revealed government plans that would reduce air security at a time of heightened concern about Al Qaeda attacks. The government retroactively labeled that information “Sensitive Security Information” after MacLean disclosed it. The Department of Justice summarized the government’s appeal as follows:

The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.

Elsewhere, however,  the government’s brief appears to argue for exempting all SSI disclosures from whistleblower protections.

The Federal Circuit attempted to downplay the impact of its decision by pointing out that the government may still “discipline employees who reveal SSI for personal gain or due to negligence, or who disclose information that the employee does not reasonably believe evidences a substantial and specific danger to public health or safety.” App., infra, 16a-17a. But that is cold comfort. SSI, by its very nature, concerns security matters.

The federal government, however, frequently labels information improperly. Information is classified to avoid embarrassment and to hide evidence of wrongdoing. Indeed, the Justice Department itself is guilty of over-classification. A blanket exemption of SSI or any classified information would invite waste, fraud and abuse and more over-classification to hide it.

Replying to the Justice Department’s brief, MacLean’s lawyers wrote:

The Court of Appeals correctly held that MacLean’s disclosure was not “specifically prohibited by law” within the meaning of the statute at issue. The text, structure, purpose, and legislative history of that provision make two things absolutely clear: The exception applies only to disclosures that are prohibited by statute, and it applies only when that prohibition is “specific [ ].” The only statute on which DHS relies, the Court of  Appeals rightly concluded, did not “specifically prohibit” MacLean’s disclosure. DHS acknowledges that there is no circuit split on this issue. Indeed, not a single circuit judge has adopted DHS’s view of the statute. DHS nevertheless insists that this Court’s review is necessary. Letting the decision below stand, it claims, would threaten transportation security. But as Congress has long recognized, protecting whistleblowers serves, rather than undermines, public safety. MacLean is a case in point: Air travel is safer, not less safe, because he came forward.

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For more details and updates on the MacLean case visit the Robert MacLean website.

Also, see our previous articles on the MacLean case:  Jan. 27, 2014,   Aug. 30, 2013, and Jul. 11, 2013,

Court records for MacLean’s lower court cases and a summary are available here.

MacLean is represented before the Supreme Court by Louis Clark, of the Government Accountability Project, and Neal Katyal, of Hogan and Lovelis, both in Washington, D.C.

Briefs filed with the U.S. Supreme Court in Department of Homeland Security v. Robert J. MacLean:

Photo Credit:  “Robert MacLean, USAF, 1988” provided by Robert MacLean.