In a move that, if successful, could cripple federal whistleblower statutes, the Department of Homeland Security is petitioning the U.S. Supreme Court to clarify what information can qualify for protection under the federal Whistleblower Protection Act.
The government lost the heart of its case against former Transportation Security Administration air marshal Robert MacLean in a federal appeals’ court last year. The administration appealed, but there’s no guarantee the high court will accept the petition.
In the case, MacLean, an active and flying air marshal, leaked an unclassified text from the TSA in 2003 that contained information about a TSA policy decision he felt would pose a threat to the flying public. The leak led the agency to reverse course on its policy, but the agency ultimately discovered he was the leaker and fired him in 2006.
The government did even more. In a move designed to buttress its reasons for dismissing MacLean, it retroactively classified the text as sensitive. Suddenly, MacLean was guilty of leaking classified material. He has spent nearly eight years trying to get his job back.
He’s still trying, but the court of appeals decision now lets him pursue whistleblower protection status, which forbids the government from taking personnel actions against those leaking certain information they feel the public needs to know for its safety.
To the government, however, the court of appeals’ decision created “grave public-safety concerns that warrant this court’s (the Supreme Court’s) immediate intervention.” The government asserts that employees concerned about the public’s interest in having certain information must pursue those concerns through internal channels.
Opponents say that would make the government the final arbiter of all information and render the whistleblower statute meaningless. To wit, they say, the congressional whistleblower statute was intended to protect those releasing certain critical information the government doesn’t think should be released.
The offending text
According to appeals’ court documents, in July 2003 all air marshals received a briefing about a ‘potential plot’ to hijack U.S. airliners. Soon thereafter, the TSA sent an unencrypted text message to air marshals’ cell phones cancelling all missions on flights from Las Vegas until early August.
“After receiving this directive, Mr. MacLean became concerned that ‘suspension of overnight missions during a hijacking alert created a danger to the flying public,’” the appeals court recounts. “He complained to his supervisor and to the Office of Inspector General, but they responded that nothing could be done.”
That did not satisfy MacLean, who then disclosed the text to an MSNBC reporter. The goal was to create controversy that would compel the TSA to reverse its decision.
“MSNBC published an article criticizing the directive, and the Agency withdrew it after several members of Congress joined in the criticism,” the court of appeals stated. “In 2004, Mr. MacLean appeared on NBC Nightly News in disguise to criticize the agency dress code, which he believed allowed marshals to be easily identified.”
That turned out to be a mistake because someone at the TSA recognized his voice.
“During the Agency’s subsequent investigation, Mr. MacLean admitted that he revealed the cancellation directive to an MSNBC reporter in 2003,” the court stated. “Eventually, Mr. MacLean was removed from his position because his contact with the MSNBC reporter constituted an unauthorized disclosure of sensitive security information (SSI).”
However, at the time MacLean disclosed the information, it was not so classified. The TSA did that later.
“Mr. MacLean challenged the SSI order in the Ninth Circuit as a violation of the Agency’s own regulations and as an impermissible retroactive action, but the court rejected Mr. MacLean’s challenges,” the appeals court stated. “It held that substantial evidence supported designating the text message as SSI under the applicable regulations, ... and that the Agency did not engage in retroactive action because it ‘applied regulations ... in force in 2003’ to determine that the text message was SSI.”
At that point, MacLean challenged his termination before the Merit Systems Protection Board, saying his disclosure was protected whistleblowing activity. An administrative law judge subsequently determined MacLean did not have WPA protection.
“The Board reasoned that the regulation prohibiting disclosure of SSI, upon which the Agency relied when it removed Mr. MacLean, had the force of law,” the appeals court recalled. “The AJ then upheld Mr. MacLean’s removal and the Board affirmed in MacLean II, the decision now on appeal.”
Under the whistleblower statute, protection is accorded to those who disclose information unless that information is expressly forbidden to be disclosed by law. And while a regulation such as the one the TSA said MacLean violated was not a law within the meaning of the whistleblower statute, the board determined, MacLean’s disclosure was directly prohibited by another statute, the Aviation and Transportation Security Act.
That statute directed the TSA secretary to promulgate regulations forbidding certain information from being released – including that leaked by MacLean – if release would threaten public transportation safety. The regulation thus was promulgated as a result of a statutory command, the board reasoned, and fell outside the purview of whistleblower protection.
The board further found that the administrative law judge applied the correct regulation in upholding the TSA’s removal of MacLean, and the penalty of removal was reasonable.
Finally, the board concluded, the TSA did not fire MacLean in retaliation for his activities because the unauthorized disclosure of SSI was a non-retaliatory reason for removal.
The appeals court decision
The appeals court ultimately vacated the board’s ruling, though it did find a number of MacLean’s arguments to be specious.
For one thing, Maclean had contended that the regulation in question – that information about the deployment of air marshals was deemed sensitive materials – was not in effect in 2003 as the TSA maintained but was only codified in 2005. MacLean also maintained that, though the Ninth Circuit upheld the Agency’s eventual designation of the text message as SSI, his removal violated his due process rights because the message was not labeled SSI when it was sent.
“He argues that the termination was improper because he did not know that he was violating any Agency rules by revealing the content of the text message,” the appeals court summarized.
MacLean additionally insisted that he tried in good faith to proceed within the law before leaking the text, and that his due process rights were violated because of his lack of knowledge about the sensitivity of the offending text. He also invoked protection under the whistleblower act.
As to the first defense, the court said MacLean should have known about the sensitivity of the information. That’s because the 2005 codification merely recodified an earlier regulation that said essentially the same thing and was in effect in 2003. In fact, the earlier regulation barred “disclosing ‘[s]pecific details of aviation security measures,’ including ‘information concerning specific numbers of [Marshals], deployments or missions.’”
The court also rejected MacLean’s good-faith claim.
“Both the applicable regulation and the nondisclosure agreement that Mr. MacLean signed put him on notice that revealing information concerning coverage of flights by Marshals could lead to termination,” the appeals court stated. “Thus, the Agency did not violate due process even though it formally designated the text message as SSI only after it was sent. Furthermore, we agree with the government that, because the regulation prohibiting disclosure of SSI does not include an intent element, Mr. MacLean cannot be exonerated by his subjective belief that the content of the text message was not SSI or that he was protected as a whistleblower.”
On the other hand
That said, the court stated, the WPA prohibits individuals in positions of authority from taking a ‘personnel action’ against a government employee in certain circumstances, particularly because of any “disclosure of information by an employee ... which the employee ... reasonably believes evidences ... a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law.”
So was the disclosure prohibited by law?
To be sure, as stated before, the law directs the secretary of transportation to prescribe regulations prohibiting disclosure of information obtained or developed in ensuring security under the law if the secretary decides disclosing the information would be detrimental to transportation safety.
The question is, the appeals courts asks, is the phrase “prescribe regulations prohibiting disclosure” too general in and of itself to qualify as an express and specific statutory exclusion of the material leaked by MacLean?
“They (MacLean and his legal team) contend that the phrase ‘specifically prohibited by law’ in the WPA can only refer to explicit statutory language that identifies specific classes of information,” the court stated. “They argue that the ATSA’s ‘detrimental to transportation safety’ language does not establish particular criteria for withholding information and leaves a great deal of discretion to the Agency, which is inconsistent with the WPA’s requirement of specificity.”
The appeals court sided with MacLean.
“We agree with Mr. MacLean that the ATSA does not ‘specifically prohibit’ the disclosure at issue in this case,” the court stated. “The ATSA’s plain language does not expressly prohibit employee disclosures, and only empowers the Agency to prescribe regulations prohibiting disclosure of SSI ‘if the Secretary decides disclosing the information would...be detrimental to public safety.’ Thus, the ultimate source of prohibition of Mr. MacLean’s disclosure is not a statute but a regulation, which the parties agree cannot be ‘law’ under the WPA.”
Because Mr. MacLean’s disclosure was not specifically prohibited by law, the court concluded, the board’s decision must be vacated.
The government’s case
Now the Department of Homeland Security wants the appeals court decision thrown out, saying it would set a dangerous precedent.
“The Federal Circuit’s decision seriously undermines the effectiveness of the congressionally mandated SSI regime, invites individual federal employees to make disclosures that will threaten public safety, and warrants this Court’s immediate review,” the petition states. “In the course of its efforts to secure the Nation’s transportation network, the TSA necessarily develops and acquires a great deal of information, including information about security vulnerabilities, that has the potential to cause extreme harm if publicly disclosed. In recognition of that fact, Congress directed that the TSA ‘shall prescribe regulation’ prohibiting disclosures that would, in the expert judgment of the TSA, ‘be detrimental to the security of transportation.’”
In effect, Homeland Security states, the decision permits individual federal employees to override the TSA’s judgments about the dangers of public disclosure.
“According to the court of appeals, no matter how harmful it might be for particular SSI to fall into the wrong hands, an employee cannot be disciplined for publicizing that SSI, so long as he reasonably believes that the disclosure serves one of the (public interests),” the petition states. “The decision thus clears a path for any employee to do what respondent 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 claiming that publicizing such vulnerabilities revealed ‘a substantial and specific danger to public health or safety.’”
The result, DHS continues, contravenes the manifest intent of Congress, which is that whistleblower protections do not apply to disclosures that are “specifically prohibited by law.”
“That proviso squarely encompasses disclosures of SSI, which have been prohibited pursuant to an express congressional directive,” the petition states. “Employees can instead raise concerns that implicate SSI through a separate set of procedures, covered by Section 2302(b)(8)(B), that allow such concerns to be addressed without harmful public disclosures.”
Clearly, the information was legally prohibited by law, DHS said, even if the retroactive classification had not been applied, because of the 2003 regulation that did exist.
“Those regulations expressly foreclosed respondent from sharing ‘information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations’ with unauthorized persons,” the petition states. “...The regulatory prohibition that respondent violated in this case is not meaningfully distinguishable from other legal prohibitions that, even in the court of appeals’ view, would be sufficient to render (whistleblower protections) inapplicable.”
Indeed, the government asserts, it is difficult to see how the provisions that respondent violated in this case could have prohibited the disclosure of air-marshal-deployment information with any greater clarity or specificity.
“The prohibition against respondent’s disclosure was a prohibition ‘by law’ whether it appeared directly in the statute or instead in the regulations that the statute required the TSA to promulgate,” DHS argues.
The case thus boils down to an age-old test of executive power. The whistleblower law precludes a retaliatory strike against personnel who disclose information they believe to be in the public interest if that disclosure is not specifically prohibited by law.
The ATSA does not expressly mention the information leaked in the MacLean case, but it does direct the agency to develop regulations forbidding certain types of information to be disclosed, if the agency deems such disclosure a detriment to public safety.
In one scenario, the power of disclosure rests in congressional hands, and only that information Congress expressly and specifically deems essential to protect national security is barred from whistleblower protection. In the second scenario, the executive branch makes those decisions.
Richard Moore may be reached at email@example.com.