The Supreme Court ruled in favor of a whistleblower in its case Dept. of Homeland Security v. Maclean, a case where an air marshal claims wrongful termination. In 2003, Maclean and other TSA air marshals received a briefing on terrorist threats to long-distance flights. Two days later, TSA announced that it was suspending assignments, such a long-distance flights, for air marshals that would include overnight stays; the purpose being to save money due to budget pressures. Maclean saw this as a threat to public safety, went up the chain of command with these concerns and got nowhere and then contacted MSNBC, which did a story. Members of Congress then created a stir and the policy was reversed. Reversed not because Congress rationally changed or eased the budget pressures, we might add.
Maclean was fired for disclosing sensitive information without authorization. He then claimed wrongful termination, because the federal Whistleblower Protection Act prohibits firing a federal employee for disclosing information regarding a substantial or specific danger to public health. But there is an exception if disclosure of the information is "specifically prohibited by law." While TSA had issued regulations prohibiting Maclean's disclosure, a regulation is not a law the Supreme Court ruled.
This case is a one-off. Congress, as Chief Justice Roberts' opinion for the Court invited, can amend the Whistleblower Protection Act to address situations like Maclean's, which one presumes it will do.
There are good reports in the New York Times, Justices Rule Dismissal of Air Marshal Unlawful and at SCOTUSblog, Justices adopt broad view of whistleblower protections in air marshal dispute.
Lexington, Kentucky whistleblower lawyer Robert Abell represents individuals and employees in whistleblower cases; contact him at 859-254-7076.
