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Local attorneys weigh in on whistleblower ruling
SHERRY KARABIN
Legal News Reporter
Published: February 27, 2015
How much insulation does the Whistleblower Protection Act of 1989 provide to federal employees who disclose information in the name of public health or safety? The recent U.S. Supreme Court decision in Department of Homeland Security v. MacLean provides some new insight.
Back in 2003, former federal Air Marshal Robert MacLean alerted an MSNBC reporter about a text message from the Transportation Security Administration (TSA) that detailed the agency’s plans to temporarily eliminate marshals on flights from Las Vegas. The change was to take place despite the fact that the agency had previously received information about a plot to hijack U.S. airliners.
The disclosure resulted in the idea being scrapped. But as Buckingham, Doolittle & Burroughs employment and labor partner Barry Freeman explained, after MacLean’s role in the incident came to light, the TSA retroactively changed the rules to designate text messages as sensitive security information (SSI). Thus, MacLean was fired for disclosing SSI in violation of TSA regulations.
MacLean unsuccessfully challenged the SSI order in the 9th U.S. Circuit Court of Appeals, arguing it was an impermissible retroactive action, among other things.
Fisher & Phillips associate Joseph Brennan said MacLean also fought his firing before the U.S. Merit Systems Protection Board on the grounds that the disclosure was protected under the Whistleblower Protection Act because the information let the public know about a substantial safety concern.
Brennan said the government argued MacLean was not protected because leaking the information was against the law since TSA regulations forbid the unauthorized disclosure of SSI. The Merit Systems Protection Board agreed with the TSA but the U.S. Court of Appeals for the Federal Circuit overturned the decision, stating the agency regulations were not “law” under the whistleblower statute.
After the government unsuccessfully sought rehearing en banc in the federal circuit, the Supreme Court granted petition for certiorari. In a 7-2 decision on Jan. 21, the U.S. Supreme Court agreed with the federal circuit decision, determining MacLean’s disclosures were not “specifically prohibited by law.”
“The whole point of the Whistleblower Protection Act is that federal employees working for agencies are not afraid to come forward and report illegal or dangerous activities,” said Freeman. “This air marshal went to his supervisor first and when nothing changed, he went public.
“There is a loophole in the act--employees are not protected if they act in violation of the law,” he said. “Even though the TSA retroactively changed its rules to make MacLean’s conduct illegal, the high court decided that only Congress makes ‘laws’. Agency rules and regulations are not ‘laws’ under the act, so agency rules and regulations are outside the loophole.”
Brennan said by excluding agency regulations from the act’s definition of against the law, the court expanded the protections given to whistleblowers and reduced the ability of federal agencies to control the release of information, which could be deemed sensitive.
“This decision puts federal employers on notice that they need to tread lightly before issuing edicts to employees,” said Brennan. “If an employee is uncomfortable with the order, and contests it, the court may well be on his/her side if the employer takes disciplinary action.
“Fortunately in Ohio, private sector employers have a little more protection. Pursuant to Ohio law, whistleblowers must first notify their supervisors and if their supervisor does nothing then they can go to the employer directly,” he said. “If nothing is done they can go to the government.
“If it is an OSHA (Occupational Safety and Health Administration) violation, however, they do not have to go through any of these procedures.”
“There is little doubt that the decision will apply to all federal employees, the question is will it go beyond?” said Freeman. “I suspect that a lot of states and state plaintiff’s attorneys will make similar arguments.
“Certainly in the future, federal agencies will be required to ensure that Congress has acted to restrict sensitive government information before moving forward on unauthorized disclosures.”