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Supreme Court Weighs Scope of Whistleblower Protection Act

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The U.S. Supreme Court next week will hear arguments in Department of Homeland Security v. MacLean, a case that could determine whether government officials are free to punish whistleblowers who disclose information that’s been labeled as “sensitive” — even if the information was never listed for protection by any law.

The background: In 2003 Robert MacLean, a federal air marshal, complained about a plan to remove marshals from certain airline flights despite warnings of a hijacking plot. After getting nowhere via official channels, he leaked the plan to the media. The leak was later uncovered, and Mr. MacLean was fired for disclosing “Sensitive Security Information” — a label that his employer, the U.S. Transportation Security Administration (TSA), had applied retroactively to a series of text messages cancelling air-marshal coverage.

Since then Mr. MacLean has been trying to sue the government for illegal retaliation under the Whistleblower Protection Act (WPA), which forbids federal agencies from punishing their workers for blowing the whistle on suspected illegal or dangerous acts. The WPA contains an exception, however: Employees who make disclosures “specifically prohibited by law” are not protected.

No law explicitly addresses the leaking 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 a leak would endanger security — which, in this case, the TSA said it would.

So were Mr. MacLean’s leaks “specifically prohibited” by the ATSA, and therefore permissible grounds for firing? Or may Mr. MacLean seek justice for an illegal dismissal? That’s what the Supreme Court must decide after hearing arguments on November 4.

The decision has major implications: If government officials may issue regulations that, in effect, disallow WPA coverage for large swaths of non-classified information — and if it’s OK to identify this information retroactively, as in Mr. MacLean’s case — then the scope of the WPA is drastically reduced. (Some would say gutted.)

Mr. MacLean has drawn some interesting support — including, last month, the first-ever amicus brief filed with the Supreme Court by the U.S. Office of Special Counsel (OSC), which opposes the Obama Administration’s ongoing defense of the actions of the Bush-era TSA.

The OSC is an independent federal agency that helps to enforce the WPA. A ruling against Mr. MacLean, it said in its brief, would threaten “OSC’s ability to enforce … whistleblower protections and deter agencies from retaliating against employees who make disclosures.”

Mr. MacLean won the last round of his fight in April 2013, when the U.S. Court of Appeals for the Federal Circuit ruled in his favor. The Obama Administration asked the Supreme Court to step in, however, claiming that the Fed Circuit opinion “seriously undermines” its ability to protect public safety.

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