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Obama Administration Asks Supreme Court to Review MacLean Decision

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The Obama administration asked the U.S. Supreme Court to review a lower court’s 2013 ruling that a former federal air marshal could claim he was illegally fired for leaking sensitive information to the media.

The case, MacLean v. Department of Homeland Security, raises technical — but critically important — questions about the scope of the Whistleblower Protection Act (WPA), which forbids most retaliation against federal employees who disclose suspected illegal or dangerous acts by the government.

The Supreme Court now must decide whether to hear arguments on the issue, or to let stand the decision by the U.S. Court of Appeals for the Federal Circuit.

The Fed Circuit’s opinion in April 2013 favored Robert MacLean, who had objected to a government plan to remove air marshals from certain airline flights in 2003 — despite warnings of a possible hijacking plot. After complaining via official channels and getting nowhere, Mr. MacLean leaked the decision anonymously to MSNBC, which drew the attention of Congress and ultimately caused the directive to be revoked.

After his MSNBC leak was discovered in a later investigation, Mr. MacLean was fired for disclosing “Sensitive Security Information” (SSI) — a label that his employer, the U.S. Transportation Security Administration (TSA), had applied retroactively to its text messages cancelling air-marshal coverage. Mr. MacLean said the firing was retribution for his workplace activism; that the cancellation wasn’t labeled as SSI when he leaked it; and in any case that the WPA prohibited any punishment for the leak.

The government, by contrast, said the WPA didn’t shield Mr. MacLean because his disclosure was illegal.

The WPA doesn’t forbid retaliation against all whistleblowing by federal employees; it includes several explicit exceptions. Most relevantly here, it doesn’t protect employees who make disclosures “specifically prohibited by law.” Mr. MacLean’s fate now turns on the exact meaning of this phrase, since courts have rejected his other arguments.

No law explicitly addresses the disclosure of information about air-marshal coverage of airline flights. But the Aviation and Transportation Security Act (ATSA) empowers the government to make regulations that bar the disclosure of such information, if it decides that leaks would endanger security — which, in this case, the government decided they would.

So were Mr. MacLean’s leaks therefore “specifically prohibited” by the ATSA, and therefore legitimate grounds for firing?

Or were they barred only by a discretionary regulation, which would allow him to claim WPA protection?

The Fed Circuit decided that the ATSA’s authorization of regulations was too vague to count as a specific prohibition — but Judge Kimberly Moore’s opinion called it “a very close case.” Among other factors, Judge Moore cited a decision by Congress to drop some proposed language from the WPA, which in an earlier draft had denied protection for acts “specifically prohibited by law, rule, or regulation.”

Even though the ATSA still provided a criterion for barring disclosures — if they would be “detrimental to transportation safety” — such language was “not enough to push the ATSA over [the WPA’s] threshold” of specificity, Judge Moore ruled for a three-judge panel.

The entire Fed Circuit later refused to rehear the case en banc, sending Mr. MacLean back to the U.S. Merit Systems Protection Board for further proceedings on his WPA defense.

In its petition for review by the Supreme Court, the Obama Administration said the Fed Circuit opinion “seriously undermines” its ability to act on the ATSA’s mandate to prohibit disclosures that threaten public safety.

The ruling “clears a path for any employee to do what [Mr. MacLean] did here: go public with an internal disagreement about how best to allocate finite security resources; put lives in danger by identifying the areas that have received fewer resources; and then attempt to avoid any employment-related repercussions” by hiding behind the WPA, the petition said.

The Fed Circuit’s opinion, however, preemptively rejected this “parade of horribles” as unpersuasive, noting that many actions still would be denied WPA protection under the law. “Our interpretation of the WPA does not deprive the ATSA of meaning,” wrote Judge Moore.

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