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Dep't of Homeland Sec. v. MacLean - 574 U.S. 383, 135 S. Ct. 913 (2015)


Throughout 5 U.S.C.S. § 2302, Congress repeatedly used the phrase “law, rule, or regulation.” For example, § 2302(b)(1)(E) prohibits a federal agency from discriminating against an employee "on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation.” For another example, § 2302(b)(6) prohibits an agency from granting "any preference or advantage not authorized by law, rule, or regulation.” And for a third example, § 2302(b)(9)(A) prohibits an agency from retaliating against an employee for “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation.” In contrast, Congress did not use the phrase “law, rule, or regulation” in § 2302(b)(8)(A); it used the word “law” standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Thus, Congress’s choice to say “specifically prohibited by law” rather than “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations.


In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135. That Act provides that the Transportation Security Administration (TSA) “shall prescribe regulations prohibiting the disclosure of information . . . if the Under Secretary decides that disclosur[e] would . . . be detrimental to the security of transportation.” 49 U.S.C. § 114(r)(1)(C). Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of “sensitive security information,” 67 Fed. Reg. 8351, which included “[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations,” 49 C.F.R. § 1520.7(j).

In July 2003, the TSA briefed all federal air marshals -- including Robert J. MacLean -- about a potential plot to hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message canceling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that canceling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA's decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization.

MacLean challenged his firing before the Merit Systems Protection Board. He argued that his disclosure was whistleblowing activity under 5 U.S.C. § 2302(b)(8)(A), which protects employees who disclose information that reveals “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” The Board held that MacLean did not qualify for protection under that statute because his disclosure was “specifically prohibited by law,” § 2302(b)(8)(A)-namely, by 49 U. S. C. § 114(r)(1). The Court of Appeals for the Federal Circuit vacated the Board's decision, holding that Section 114(r)(1) was not a prohibition.


Did the Court of Appeals err when it found that the TSA violated 5 U.S.C.S. § 2302(b)(8)(A) when it fired MacLean?




The U.S. Court of Appeals for the Federal Circuit did not err when it found that the TSA violated 5 U.S.C.S. § 2302(b)(8)(A) when it fired MacLean because he told a reporter that the TSA had decided to remove air marshals from certain long-distance flights to save money on hotel costs, even though it had credible information that al Qaeda was planning to attack passenger flights in the United States. Although § 2302(b)(8)(A) allowed the TSA to discharge an employee who made unauthorized disclosures that were "specifically prohibited by law," the disclosure in question was prohibited by regulation, and 49 U.S.C.S. § 114(r)(1), the statute authorizing the TSA’s regulations, did not specifically prohibit MacLean’s disclosure.

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