December 1, 2014

Whistleblower onlineOn November 4, 2014, the U.S. Supreme Court heard oral arguments in the case of Department of Homeland Security v. MacLean. This case has the potential to strip future federal employee whistleblowers of some protections afforded under the Whistleblowers Protection Act.

Congress enacted the Whistleblowers Protection Act in 1989 with the intent to motivate people to disclose information that they reasonably believe poses a “substantial and specific danger to public safety,” except when the disclosure is explicitly “prohibited by law.” In MacLean, the question before the Supreme Court is whether the Whistleblower Protection Act bars an agency from taking enforcement actions against an employee who violates an agency’s regulations.

In 2003, Robert J. MacLean, a U.S. Air Marshal, was briefed on a potential September 11 style attacks on U.S. airlines.  After the briefing, MacLean received text messages stating that the Transportation Security Administration (TSA) planned to significantly reduce the number of federal air marshals on flights that required marshals to stay overnight. Upon learning of this policy change, MacLean expressed his concerns for passenger safety to his supervisors and also disclosed the policy change to an MSNBC reporter. The press coverage resulting after his disclosure caused the TSA to cancel its newly planned-policy.

Three years later, MacLean was fired from his position for disclosing “Sensitive Security Information” (SSI) without authorization. Regulations prohibited MacLean’s unauthorized disclosures without authorization.

Believing his termination was not justified, MacLean challenged the termination before the Merit Systems Protection Board (MSPB), arguing that his disclosure was protected pursuant to the Whistleblower Protection Act of 1989 (WPA). MacLean argued that he was disclosing a substantial and specific danger to public health or safety. In opposition, the government responded that the WPA was not applicable and the government’s termination of MacLean was accurate based on his alleged violation of permissible TSA regulations barring the unauthorized disclosure of SSI. The MSPB ruled in favor of the government and found that the ban on SSI disclosure was within the TSA’s authority. On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the MacLean’s actions were not prohibited pursuant to WPA, and vacated and remanded the case for reconsideration. The government then petitioned for certiorari, which the U.S. Supreme Court granted in May 2014, and on November 4, 2014, oral arguments were held.

The decision in MacLean may affect the future of federal employees that choose to blow the whistle on matters important to public safety. If the Supreme Court reverses the Appeals Courts decision, the federal government may have the power to prevent individuals from disclosing information they deem sensitive. If that were to happen, fewer federal employees will disclose information regarding waste, fraud, abuse, injustice, and gross misconduct out of fear of the consequences. Senator Charles E. Grassley and other members of Congress have expressed concerns that a reversal may “deter whistleblowers and restrict the flow of information to Congress.”

The Cochran Firm has a strong whistleblower practice that is known for fighting for the rights of whistleblowers. Members of our firm track court cases like Department of Homeland Security v. MacLean that may impact future whistleblower claims, and inform our clients of any legislation or any other pending case that may affect their rights based on the Whistleblowers Protection Act and other applicable laws.