Victory! Supreme Court rules in favor of Robert MacLean and whistleblowing

Robert MacLean testifies to Congress. Photo by Linda Lewis

Robert MacLean testifies to Congress beside Susan Tsui Grundmann, MSPB Chair. Photo by Linda Lewis

Supporters of whistleblower Robert MacLean rejoiced Wednesday upon learning of his victory at the U.S. Supreme Court. The Court decided, 7-2, that MacLean’s disclosure while a TSA air marshal was “not specifically prohibited by law.”.(Department of Homeland Security v. Robert MacLean, No. 13–894)

MacLean tweeted his response to the news.

In 2003, MacLean challenged a TSA decision to remove air marshals from long-distance flights as authorities warned of a 9/11-stye terrorist attack. After going through channels failed to produce results, he took his concerns to a reporter. The agency fired MacLean, claiming his disclosure was prohibited.

Chief Justice Roberts delivered the opinion, joined by justices Scalia, Thomas, Ginsberg, Breyer, Alito, and Kagan. In the dissenting opinion, joined by Justice Kennedy, Justice Sotomayor wrote that,”Congress has expressed its clear intent to prohibit such disclosures.”

Whistleblower advocates watched this case nervously, afraid that a ruling against MacLean would devastate whistleblower protections.

“The survival of the Whistleblower Protection Act was at stake in this case,” said Tom Devine, Legal Director for the Government Accountability Project. “After today’s victory, freedom of speech is alive, well and stronger than ever.”

Special Counsel Carolyn Lerner said the Court “made the right call in protecting the rights of brave federal whistleblowers who risk their own careers to inform the public about significant threats to public safety.”

POGO Executive Director Danielle Brian praised MacLean’s courage in putting public safety above his own career. “We’re thrilled that justice has finally prevailed,”

The Denver Post Editorial Board observed, “The win for whistleblowers also was a rarity, and a welcome decision. All too often those who speak out in an effort to call attention to something they believe is wrong are unceremoniously crushed by government, to the detriment of the public interest.”

This has been a David v. Goliath struggle for MacLean, as it is for most whistleblowers, and the legal battle is not yet over. MacLean must return to the Merit Systems Protection Board for a ruling on the merits of his whistleblower case. It would serve the interests of flyers and taxpayers if the Board promptly returned Mr. MacLean to his air marshal position.