Cries and Whistleblowers

The Supreme Court decided its first case about a federal whistleblower this past session. The case was Department of Homeland Security v. MacLean.

Facts of the Case

In 2003, Robert MacLean, an air marshal, received a non-encrypted text message from the Transportation Security Administration on his unsecured cell phone, describing a new temporary policy that would limit air marshal presence on long-distance overnight flights. The TSA was running out of money before the end of the fiscal year and found money to stabilize the budget through canceling these missions. Just days before, TSA marshals were briefed about a potential terrorist airline hijacking plot. Not satisfied with the responses by his supervisors and the inspector general of the Department of Homeland Security to his complaints, MacLean decided to tip off an MSNBC reporter anonymously, in hopes the story would force the TSA to rethink its budget solution. MacLean’s idea worked: after MSNBC ran the story, a number of Senators pressured the TSA to change its mind. The TSA followed the Senators’ demands and canceled the cut.

The next year, MacLean again went to the press, only this time his target was the dress policy of the TSA, claiming that it made it easier for terrorists to identify air marshals. He appeared on NBC News as “Federal Air Marshal ‘Mike'” with a disguise. His disguise and distorted voice, though, apparently weren’t effective enough because a TSA employee recognized the voice. Subsequently, the TSA ordered an investigation of Robert MacLean for “unauthorized media appearance,” and it was during that investigation that he admitted he leaked information to MSNBC the previous year on the air marshal mission cuts. Then, in 2006, the TSA fired MacLean, but only after it had retroactively declared that initial text message a form of “Sensitive Security Information,” or SSI, the disclosure of which is a violation of TSA regulations. The original text message was not marked as SSI and was not sent to MacLean’s phone given to him specifically for SSI messages. It took three years for the Government to issue an order declaring the message was SSI.

The air marshal in “Bridesmaids”

Certainly upset by his firing, MacLean tried to appeal the decision before the Merit Systems Protection Board (MSPB). He cited the Whistleblower Protection Act of 1989 (WPA) as a defense: he had a reasonable belief that the leaked information brought to light “a substantial and specific danger to public health or safety.” The Government argued back that MacLean was not protected under the WPA because another law, the Aviation and Transportation Security Act of 2001 (ATSA), banned unauthorized disclosure of SSI, and the WPA didn’t protect whistleblowers who revealed information if its disclosure is specifically “prohibited by law.” The MSPB agreed, noting that the phrase “specifically prohibited by law” included information that is prohibited by regulations (i.e. SSI). The MSPB’s decision rested on two determinations: the TSA has authority to put a regulatory ban on SSI disclosure, and the TSA was given that authority, to prohibit certain forms of disclosure, by the ATSA.

MacLean appealed the decision and a Federal Circuit panel unanimously ruled in his favor by vacating the MPSB decision, but their decision was interesting – they ruled, unlike the various courts who voted against MacLean, that the regulations those courts cited as reasons why the information he gave was secret were not laws, and so MacLean’s disclosure was not “prohibited by the law.” The only legal source that claimed what MacLean did was against the rules is from TSA regulations. Agency regulations are not laws. Agencies are not allowed to self-regulate; Congress and/or the President must create those rules. The goal was so that agencies can’t issue “gag orders” in order to silence their employees. And, if the TSA were to try to cite the ATSA, the court ruled that, based on the specificity required by the Whistleblower Protection Act of laws that prohibited disclosure, that law was not specific enough. The Government petitioned the Supreme Court and SCOTUS agreed to hear the case.

Relevant Cases, Laws, Etc.

Aviation and Transportation Security Act of 2001 (ATSA): a piece of legislation enacted immediately after the terrorist attacks of September 11, 2001. It established the Transportation Security Administration (TSA) as a component of the U.S. Department of Transportation. Later, after the passage of the Homeland Security Act, the TSA was moved under the purview of the Department of Homeland Security.

FAA Administrator v. Robertson: a 1975 Supreme Court case about disclosures by the FAA under the Freedom of Information Act. The decision argued that, since the Federal Aviation Act of 1958 delegated the authority to decide what information was allowed to be disclosed, the word “statute” in the Freedom of Information Act’s (FOIA) line about disclosures “specifically exempted from disclosure by statute” could be interpreted to mean agency-enacted regulations. The case is cited by the Government in the case in arguing that ‘law’ in “prohibited by law” does not only mean pieces of legislation enacted by Congress or executive orders enacted by the president.

Transportation Security Administration (TSA): Created in the aftermath of 9/11 and under the jurisdiction of the Department of Homeland Security, the TSA is a federal agency responsible for maintaining the security of the traveling public. Their most prominent presence is the security line at airports. One responsibility, important in this case, is the placement of air marshals on flights in the event of another hijacking or attempted bombing.

Whistleblower Protection Act of 1989: A federal law passed under the administration of President George H.W. Bush, the Whistleblower Protection Act protects federal whistleblowers from retaliation (threats or otherwise) who report misconduct. If a whistleblower reasonably believes there is evidence of a violation of conduct – violating a law or regulation, mismanagement, wasting funds, or a specific, substantial threat to public safety – he or she may file a complaint and be protected by the law.

Arguments

Whistleblowers in “Arrested Development”

The Orange County Register cites Fowler School of Law (Chapman University) Dean Thomas Campbell: he argues that the case focuses on statutory interpretation of the phrase “prohibited by law.” While the normal interpretation of “law” would “include federal statutes, federal agency regulations, and Executive Orders,” this case is different because the Whistleblower Protection Act would protect employees from regulations created by agencies for themselves. If the TSA didn’t want something to get released, they could just create a regulation that bans disclosure of that information, without oversight by another body, but the point of the Whistleblower Protection Act was to allow employees to make these disclosures, even if they hurt the agency.

The Government takes a pragmatic approach, arguing that the Court must limit the Whistleblower Protection Act, because the nation’s security could not have been written to depend on the whims of more than 60,000 TSA employees.

From a pragmatic standpoint, however, that argument makes little sense. The reason there are protections for whistleblowers is because of these sensitive secrets – if the issue was a minor one that put no one in danger, whistleblowing likely would not be the employee’s method of communication: they could likely just tell their superior and a change would be made. Whistleblowing is an action that is taken in the most dire of circumstances, when all else is off the table but the matter is so pressing that someone needs to know and change the protocol.

Another pragmatic argument offered by the Government is that ruling in favor of MacLean would lead Government employees disclose information they wrongly believed was in the public’s interest, leading to a bunch of meaningless and possibly harmful disclosures. The Government also argues that Congress has already enacted laws that prevent agencies from imposing self-protecting regulations on its own workers so they don’t make any disclosures.

The Government’s main argument is two-fold: first, ‘by law’ includes actual laws and regulations that essentially function as laws, or at least they have the same force and effect; second, if that argument fails, the ATSA satisfies that requirement because the ATSA requires the Under Secretary of Transportation for Security to “prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security” if that information would “be detrimental to the security of transportation.” The Government’s brief is citing section 114(r)(1) of U.S. Code 49, which covers the TSA. The Government’s brief cites FAA Administrator v. Robertson, a 1975 Supreme Court case on the Freedom of Information Act (FOIA). Essentially, the case decided that a part of that law that referenced disclosures which were “specifically exempted from disclosure by statute” (emphasis added) included regulations by the FAA under the Federal Aviation Act of 1958. That law explicitly gave a bunch of authority to the FAA to decide what information was sensitive, and thus couldn’t be disclosed to the public through a FOIA request, and what information wasn’t, and thus could be disclosed. The argument follows that since the ATSA delegates that authority to the TSA, the TSA’s regulations can be taken as law.

MacLean’s brief takes on that second argument, specifically the part that allows the Department of Homeland Security to “prescribe regulations prohibiting the disclosure of information.” His argument is that the law does just that – it doesn’t actually prescribe regulations, it just allows the DHS to prescribe regulations, which doesn’t amount to regulations by itself. Additionally, MacLean argues that Section 114(r)(1) is too broad – it just allows the TSA to block disclosures if the disclosure would be “detrimental to the security of transportation,” which hardly satisfies the level of specificity required by the Whistleblower Protection Act. Lastly, MacLean takes on the use of FAA Administrator v. Robertson. His brief argues that, in that case, the Court looked very closely at the FOIA’s legislative history and intent to determine the meaning of that line. Since FOIA and WPA are fundamentally different – they have neither the same purpose nor intent – the Court should not use the FOIA as a guide to interpret the WPA. MacLean offers instead a method of simply looking at what Section 114(r) says (or doesn’t say). MacLean argues that part of U.S. Code doesn’t offer any clue that Congress intended to block the disclosure of SSI. Lastly, MacLean agrees that some statutes could allow agencies to create rules for themselves, and he even cites some examples, but he notes that since the ATSA did not delegate that authority, the Supreme Court should not do it for them.

In argumentation, the justices seemed skeptical of the Government’s defense. Ian H. Gershengorn, a deputy solicitor general, fielded questions from the justices that seemed to ruthlessly dismantle his argument. Four main arguments were essentially decided in favor of MacLean:

First – what is the meaning of the word “law”? Geshengorn argued that “law” included some but not all regulations, which Justices Scalia and Kennedy promptly tossed aside. Without the regulations enacted by the TSA, the law by itself would not be enough to provide a specific exception for whistleblower protection – the law only allows the TSA and DHS to craft regulations, it doesn’t actually make the regulations. Justices Kagan and Scalia didn’t buy Geshengorn’s argument that the reference to “law” in the exemption should include some, but not all, regulations. It’s too “subtle” of a distinction, said Scalia.

Second – how do workers know what information is secret and thus forbidden from disclosure? Justices like John Roberts were concerned about the TSA’s ambiguity. In other words, under the TSA’s current disclosure regulations, it would be impossible for workers to discern what is allowed to be disclosed and what is not. In fact, in the Government’s own brief, the argument is made that MacLean would have been able to tell reporters that federal air marshals would not be on a number of flights, but he wouldn’t be able to say which specific flights would lack an air marshal. That’s a fine line, and one that sets up trouble in the future.

Third – how does the President’s ultimate banning-of-sensitive-information-disclosure power fit in? Geshengorn also conceded that, no matter the result of the case, the president would still be able to ban disclosure of sensitive information, preventing any troubling side-effects of letting whistleblowers speak out. Justice Breyer noted, as a practical matter, that even in the worst-case scenario, the president would be able to step in and prevent a whistleblower if the disclosure of information would present a serious threat.

Fourth – and this argument was made by MacLean’s lawyer, Neal K. Katyal – the Whistleblower Protection Act was meant to protect workers like MacLean, who responsibly and quickly disclosed information that would prevent a real threat. And in this case, as Justices Scalia and Sotomayor noted, his plan worked: the TSA reversed the policy and the threat of a terrorist attack, if there was one to begin with, or at least, as a result of the disclosure, was mitigated because there were air marshals on those key flights.

One of the few questions skeptical of MacLean was asked by Justice Alito, who wondered whether the Whistleblower Protection Act protected a worker who disclosed information to a foreign state-controlled news agency. Scalia quickly tossed aside this argument, too. The point of whistleblowing is to alert one’s own country of wrongdoing so that the country can make amends. In other words, the ultimate goal is for the country’s own benefit, not so an enemy can succeed.

Another question expressed skepticism about Katyal’s claim that the statute needed to be more specific. Justice Sotomayor asked if Congress had to look at any type of information that could be disclosed and expressly determine whether it’s actually sensitive or not. Justices Kennedy and Sotomayor each expressed their concern that, without incredibly specific laws by Congress, federal employees could disclose anything, even information that could create danger.

Decision

The Court decided the case on January 21, 2015. In a 7-2 vote, the Court ruled for Robert MacLean, with the decision written by Chief Justice John Roberts, joined by all but two justices. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Kennedy. In short, the majority decided that “MacLean’s disclosure was not ‘specifically prohibited by law.'”

The decision is pretty straightforward. They argued that MacLean’s disclosure was not prohibited by law because the TSA regulations are not law. While Congress repeatedly uses the phrase “law, rule, or regulation” throughout the WPA, in the specific passage of the law the government is citing Congress just writes “law,” meaning only law can be the source of exceptions in the WPA, not rules or regulations. An exception to the WPA for executive orders by the president, argues the opinion, would be able to preserve national security in the face of a potential whistleblowing incident. Allowing agencies to craft their own regulations on disclosure would render the WPA ineffective.

The Government offers two interpretations of “law,” as explained by the decision. First, the word “law” includes regulations that have the force and effect of law, based on a Supreme Court case, Chrysler Corp. v. Brown, which essentially made that argument, unless there is a “clear showing of contrary legislative intent.” While that may not be exactly the case in this situation, the juxtaposition of the word “law” and the phrase “law, rule, or regulation” shows that the two are different. Second, the word “law” includes regulations put in place in accordance with an “express congressional directive,” but the Government was unable to find a precedent for this definition.

Robert MacLean

Additionally, the Court found, Section 114(r)(1) doesn’t actually prohibit anything, it just allows the TSA to “prescribe regulations.” Those regulations don’t count as law. Lastly, the concern that the decision might cause thousands of rogue TSA agents who could disclose information is, perhaps, a concern, but not one to be addressed by the Court – that is for the President or Congress to handle.

In Justice Sotomayor’s dissent, she notes that she largely agrees with the majority of decision, but where they part ways is when the majority decision concludes that Section 114(r)(1) does not prohibit disclosure. Yes, the statute says the TSA is authorized to create regulations, it doesn’t create actual laws or regulations, but the word “shall” is used (…the TSA “shall prescribe regulations prohibiting the disclosure of information…”), which generally means “must” – in other words, the law does not just give the TSA the authority to create regulations, but rather it forces the TSA to create those regulations, making those regulations, in theory, an arm of the law. Second, Sotomayor argues that it is alright for Congress to delegate disclosure regulatory authority to the agency because Congress can’t be expected to identify in-depth everything it wants to be protected from disclosure. Unlike the majority, Sotomayor believes that Congress indicated its clear intent to prohibit disclosures. The majority doesn’t think this intent is sufficient, but Sotomayor decries this strict formalism, especially in a case about transportation security and the matter at hand, since knowing air marshal locations is dangerous.

Ultimately, the decision expands and strengthens the Whistleblower Protection Act. There are fewer exceptions to the protection that law offers; only a clear exception from a law, rather than a rule or regulation, can prevent a whistleblower from being protected. While the ruling may lead to more disclosures, the question of what should be disclosed and how much disclosure is “too much disclosure” is a matter to be settled by the other two branches.

Thanks

Immense thanks to SCOTUSblog for their incredibly helpful analyses.

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