Does the Whistleblower Protection Act bar an agency from taking enforcement action against an employee who violated one of the agency’s regulations?
The Supreme Court will address whether employees may violate government agency regulations without losing their rights under the Whistleblower Protection Act (“WPA”). The Court’s decision will clarify whether certain regulations have the force and effect of law under the WPA, which will, in turn, influence the extent to which employees will be willing to disclose information involving perceived government missteps. The Department of Homeland Security argues that violations of legislatively mandated regulations are unprotected under the WPA. MacLean contends, however, that an agency regulation is not an exception to the WPA, and thus disclosures that violate an agency regulation are still protected under the WPA.
Questions as Framed for the Court by the Parties
Congress has directed that the Transportation Security Administration “shall prescribe regulations prohibiting” the “disclosure of information obtained or developed” in carrying out certain transportation security functions, if the agency “decides” that “disclosing the information would * * * be detrimental” to transportation security. Aviation and Transportation Security Act, Pub. L. No. 107-71, § 101(e), 115 Stat. 603; Homeland Security Act of 2002, Pub. L No. 107-296, Tit. XVI, § 1601(b), 116 Stat. 2312. Such information is referred to in the regulations as “Sensitive Security Information.” See, e.g., 67 Fed. Reg. 8351 (Feb. 22, 2002).
The question presented is whether certain statutory protections codified at 5 U.S.C. 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information.
In 2001, Respondent Robert J. MacLean became a Federal Air Marshal (“Air Marshal”). See MacLean v. Dep't of Homeland Sec., 714 F.3d 1301, 1304 (Fed. Cir. 2013). In July 2003, MacLean and the other Air Marshals received a briefing from the Transportation Security Administration (“TSA”), an agency within Petitioner Department of Homeland Security (“DHS”), informing them of a “‘potential plot’ to hijack U.S. Airliners.” See id. Shortly after the briefing the Air Marshals received an unencrypted text message canceling certain flight missions in early August. See id. The cancellation alarmed MacLean because he believed that it endangered to the public’s safety. See id.
MacLean voiced his concerns to the Office of Inspector General and his supervisor. See MacLean, 543 F.3d at 1304. However, neither conversation produced any action. See id. Subsequently, MacLean shared his concerns and a copy of the text message with a reporter from MSNBC. See id. He hoped that this action would trigger a controversy and that the August missions would be reinstated. See id. MacLean’s efforts were successful. See id. Following the publication of an article about TSA’s decision to cancel missions and criticism from members of Congress, the TSA abandoned its plans to cancel the flight missions in question. See id.
The article published by MSNBC did not identify MacLean, but in 2004 a TSA employee recognized MacLean’s voice when he made an unauthorized appearance in disguise on NBC Nightly News. See MacLean, 543 F.3d at 1304. Following his television appearance, the TSA investigated MacLean’s media appearance. See id. Through this investigation, MacLean admitted to his communication with the press regarding the mission cancellations in 2003. See id.
The TSA terminated MacLean on the ground that his “contact with the MSNBC reporter constituted an unauthorized disclosure of sensitive security information.” See MacLean, 543 F.3d at 1304. MacLean challenged his termination through a series of actions. See id. at 1304–05. He argued that the Whistleblower Protection Act (“WPA”) protected him because the information he disclosed was not “specifically prohibited by law.” See id. Eventually, the Court of Appeals for the Federal Circuit (“Federal Circuit”) held that MacLean’s disclosure qualified for WPA protection because under the WPA, his communications were not “specifically prohibited by law.” See id. at 1310.
On January 27, 2014 the DHS filed a writ of certiorari, asking the Supreme Court of the United States to review the decision of the Federal Circuit. See Brief for Petitioner, DHS at 1–2. The Court granted the request and will ultimately decide if MacLean will receive protection for his disclosures under the WPA. See id. at i; Brief for Respondent, MacLean at ii.
The Court will determine whether the Whistleblower Protection Act (“WPA”) protects an employee who discloses SSI intentionally from punishment by a government agency. See Brief for Petitioner, DHS at I; Brief for Respondent, Robert J. MacLean at i. Section 2302(b)(8)(A) of the WPA prevents a government agency from taking retaliatory personnel action against an employee for any disclosure by the employee that the employee “reasonably believes evidences (i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” See Brief for Respondent at 5 (quoting 5 U.S.C. § 2302(b)(8)(A)). The statute only protects disclosures not specifically prohibited by law or “specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” See id. The DHS argues that MacLean’s disclosure was “specifically prohibited by law” because the term “by law” encompasses SSI regulations mandated by Congress. See Brief for Petitioner at 18. MacLean disagrees, arguing that Congress intended to exclude agency regulations under Section 2302(b)(8)(A). See Brief for Respondent at 19.
The parties also disagree over whether 49 U.S.C. §114(r)(1) (“§ 114(r)(1)”) affects the outcome of this case. See Brief for Respondent at 36; Brief for Petitioner at 28. Section 114(r)(1) permits the TSA to “prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security under authority of the Aviation and Transportation Security Act” if the TSA believes that disclosure will result in “an unwarranted invasion personal privacy,” reveal confidential information, or “be detrimental to the security of transportation.” See Brief for Petitioner at 4. The DHS argues that even if “by law” were interpreted to refer only to statutory restrictions, § 114(r)(1) bars employee disclosures of SSI. See Brief for Petitioner at 28. MacLean counters that though § 114(r)(1) empowers the TSA to create regulations, it does not forbid any conduct. See Brief for Respondent at 36.
DOES SECTION 2302(B)(8)(A) OF THE WPA COVER AGENCY PROMULGATED REGULATIONS?
The DHS argues that MacLean’s disclosure of SSI in violation of a TSA regulation was “specifically prohibited by law.” See Brief for Petitioner at 18. The DHS claims that, in Chrysler, the Court interpreted “authorized by law” as encompassing authorization not directly given by statute. See id. at 19. In Chrysler, the DHS maintains, the Court stated that “properly promulgated, substantive agency regulations” are traditionally understood as having the force of law, and that a “clear showing of contrary legislative intent” must be shown to obviate this traditional understanding. See id. at 19–20 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979)). The DHS contends that § 2302(b)(8)(A) fails to offer a clear showing that “by law” does not encompass SSI regulations. See id. at 21. In fact, the DHS argues, the SSI regulations have the force and effect of law because they meet the Court’s standard for such regulations set forth in Chrysler. See id. at 21. The DHS also claims that the standard definition of law at the time of Chrysler and the passage of § 2302(b)(8)(A) would have included certain regulations. See id. at 20.
MacLean counters that “specifically prohibited by law” cannot encompass any regulations. See Brief for Respondent at 32. MacLean argues that the term “laws” does not include any regulations because Congress specifically differentiated between the term “law” and the phrase “law, rule, or regulation.” See id. at 30. MacLean further argues that congressionally mandated regulations are not any different from other regulations because all valid regulations derive from a congressional grant of authority. See id. at 31. MacLean also claims that if Congress wished to put an agency in charge of pinpointing information that should be off-limits to whistleblowers, it could give agencies the power to bar all disclosures, overriding WPA protections. See id. at 33. The legislative history, MacLean maintains, supports the idea that regulations are not exempt because both the House of Representatives and the Senate deleted “rule or regulation” from a draft of the WPA despite the change in phrase from “specifically prohibited by statute” to “specifically prohibited by law.” See id. at 34. MacLean further contends that the Court’s standard in Chrysler does not apply in this case because no regulatory authority can qualify as “authorized by law” under the WPA. See id. at 32.
MacLean contends that the text, structure, purpose, and legislative history of the WPA indicate that Congress did not intend to exempt regulations. See Brief for Respondent at 19–27. MacLean argues that because Congress used the phrase “law, rule, or regulation” more than twenty times in the WPA, its omission in the phrase “specifically prohibited by law” is evidence that Congress did not include rules and regulations as exceptions to the WPA. See id. at 19–20. MacLean asserts that if Congress intended law to have a broad meaning, it would not have created a second exemption to certain Presidential Executive orders because Executive orders, though not laws themselves, frequently carry the force of law. See id. at 20. MacLean further argues that if an agency’s management could use the agency’s regulatory powers to prohibit disclosures, the WPA would not serve its purpose in promoting openness because agencies could prohibit disclosures that embarrass the agency’s management. See id. at 22. MacLean also contends that the legislative history shows that Congress did not intend “specifically prohibited by law” to include rules and regulations because Congress took out “rules and regulations” from the original draft. See id. at 24.
The DHS counters that MacLean’s interpretation of “law” is overly narrow. See Brief for Petitioner at 22–23. The DHS claims that the fact that “law” may be narrower than “law, rule, or regulation” does not mean that “law” does not include any regulations; Congress may have used the word “law” as a catchall for “laws, rules, or regulations” rather than creating three different categories. See id. at 23–24. Moreover, the DHS argues, Congress created a specific exemption for Executive orders because they do not have an evident statutory underpinning and would thus potentially fall outside of “law.” See id. at 25. The DHS further contends that the legislative history of the WPA supports its argument because the Senate originally desired to limit the exemption to disclosures “prohibited by statute.” See id. at 25–26. In adopting a more broadly worded proviso, the DHS argues, Congress did not intend to limit disclosures to statutes only. See id. at 26. The DHS also claims that the Senate’s concerns regarding regulation exemptions would not apply to SSI regulations because Congress itself explicitly empowered the agency to promulgate such regulations. See id. at 27–28.
DOES § 114(R)(1) “SPECIFICALLY PROHIBIT” THE DISCLOSURE OF SSI?
The DHS argues in the alternative that if regulations do not create an exception to the WPA, then § 114(r)(1) “specifically prohibited” MacLean’s disclosures. See Brief of Petitioner at 28. The DHS contends that the Court’s decision in Robertson governs the applicability of the “specifically prohibited by law” clause in this case. See id. The DHS contends that because the Court in Robertson held that a statute permitting an agency to make discretionary judgments on disclosure gave the agency’s judgments statutory force, the Court should similarly give the TSA regulations created under § 114(r)(1) the force of law. See id. at 28–30. The DHS contends that because Congress enacted Section 2302(b)(8)(A) three years after Robertson, Congress believed courts would at a minimum interpret Section 2302(b)(8)(A) as broadly as the Court interpreted the Robertson statute. See id. at 31. The DHS argues that if Section 2302(b)(8)(A) incorporates more limitations than the Robertson statute, the legislative mandate to promulgate SSI regulations would satisfy them because § 114(r)(1) “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” See id. at 33.
MacLean counters that although § 114(r)(1) empowers TSA to promulgate regulations, it prohibits nothing. See Brief of Respondent at 36. MacLean argues that the statute lacks the specificity the WPA requires, and that statute’s language is possibly very broad. See id. at 37. MacLean contends that if Congress intended to specifically prohibit DHS employees from disclosing certain information, it would enact statutes that create criminal liability for disclosing such information. See id. at 37–38. MacLean maintains that § 114(r) is a general statute that is not specific enough when compared to statutes that the Court has previously found to fall under the WPA’s “specifically prohibited by law” clause. See id. at 39. MacLean contends that Robertson is not instructive in this case because, in Robertson, the Court found the statutory text ambiguous and the legislative history clearly demonstrative of Congressional intent. See id. at 42–43. Here, MacLean argues, no evidence exists to support the notion that Congress believed that whistleblower protections could be demolished by general promulgation statutes. See id. at 43. Indeed, MacLean asserts, § 114(r)(1) achieves similar results regardless of its exception status under the WPA. See id. at 43.
This case presents the Supreme Court with the opportunity to determine whether agencies can effectively define what information the Whistleblower Protection Act (“WPA”) does not protect. See Brief for Petitioner at I; Brief for Respondent at i. The Court’s ruling will implicate the rights and protections of whistleblowers, the power of agencies to determine what information can be kept from the general public, and the balance between bureaucratic transparency and national security. See Brief for Petitioner at I; Brief for Respondent at i. The DHS argues that the confidentiality of sensitive security information (“SSI”) is “critical to transportation security” and that Congress meant for it to be exempt from WPA protection. See Brief for Petitioner at 37. MacLean contends that Congress did not grant WPA protection to information labeled SSI because the scheme for labeling information SSI is ambiguous and can be misused. See Brief for Respondent at 49.
The DHS argues that federal employees may “gravely endanger public safety” if they are able to circumvent an agency’s regulations prohibiting the disclosure of SSI. See Brief for Petitioner at 38. The DHS explains that after MacLean disclosed the information to the press regarding the unprotected flights, TSA felt compelled to “put air marshals on at least some of those flights, regardless of whether doing so would otherwise have been the optimal plan.” See id. at 37. The DHS notes that though MacLean, the press, and various members of Congress believed that the disclosure of the information was in effect protecting the country, in all likelihood these actors did not have the breadth of the information that the TSA considered prior to making decisions about transportation security. See id. at 38. Further, the DHS argues that if an employee is protected by the WPA when disclosing SSI, the employee could endanger lives through threatening the United States’ transportation security. See id. The DHS explains that information that is designated SSI includes, among many other things, security programs, directives, and training materials that would be highly dangerous if placed in the wrong hands. See id. The DHS contends that an individual with this information could “gain the ability to circumvent existing security measures, evade existing threat-detection procedures, or pinpoint specific vulnerabilities in the national transportation infrastructure.” See id. at 38–39.
MacLean and supporting amici argue that giving agencies more discretion would weaken the protection for whistleblowers and therefore endanger public safety. See Brief of Amicus Curie of United States Office of Special Counsel, in Support of Respondent at 10–11; Brief of Amicus Curie of Former U.S. Government Officials, in Support of Respondent at 25–26; Brief for Respondent at 54. The United States Office of Special Counsel further explains that whistleblowers would be deterred from disclosing “specific threats to public safety” discovered within the agency, thus defeating the purpose of the WPA. See Brief of United States Office of Special Counsel. According to several former U.S. Government Officials, limiting the protection for whistleblowers under the WPA would “weaken national security by reducing transparency and accountability.” See Brief of Amicus Curie of Former U.S. Government Officials, in Support of Respondent at 25–26. MacLean maintains that protection under the WPA ensures that government employees have the ability to raise questions about potentially risky policy prior to the policy’s implementation and consequently protects national security. See Brief for Respondent at 54. MacLean further argues that the WPA only protects employees who are reasonable when disclosing SSI, and thus only protects certain employees. See id. at 52.
MacLean contends that if the TSA believes that there is information that should be protected against whistleblowers, all they have to do is “persuade at least one elected official of their need to keep something secret.” See Brief for Respondent at 47. MacLean explains that the WPA recognizes that disclosures barred by some of the President’s Executive orders or by statute do not receive protection under the WPA. See id. Additionally, MacLean and six members of Congress note that through the WPA, Congress sought to restrain agencies and oversee their operation from within. See Brief of Amicus Curie of Members of Congress, in Support of Respondent at 27; Brief for Respondent at 47. Therefore, the members of Congress argue that the DHS’s interpretation of the WPA will effectively hinder Congressional oversight. See id. Additionally, they maintain that the DHS’s interpretation gives rise to the risk of agencies covering up misconduct. See id. at 31.
The DHS counters that Congress did not intend for the WPA to protect whistleblowers at all costs. See Brief for Petitioner at 35. The DHS contends that Congress balanced the concerns of protecting whistleblowers against withholding certain information from the public, and that the WPA properly reflects that balance. See id. The DHS further points to certain TSA procedures for employees to raise concerns regarding restricted information through which employees can bring attention to potential issues without disclosing the information to the public. See id. at 35–36.
In this case, the Supreme Court will decide whether employees may violate agency regulations by disclosing SSI without losing WPA protection. The DHS argues that SSI regulations have the force and effect of the law because Congress mandated their creation and § 114(r)(1) gave the TSA the right to prohibit conduct. MacLean argues that agency regulations cannot have the force and effect of the law under the “specifically prohibited by law” section of the WPA because the legislature specifically intended to exclude agency rules and regulations. Moreover, MacLean argues, § 114(r)(1) simply gave the TSA the right to prescribe regulations, which does not have the same force and effect of the law. This ruling will clarify whether agency regulations have the force and effect of the law under the WPA, which will, in turn, influence the extent to which employees may be willing to disclose information involving perceived government missteps.
- Lawrence Hurley: Supreme Court Agrees to Hear Air Marshal Whistleblower Case, Reuters (May 19, 2014).