U.S. Supreme Court
Employment – Whistleblower protection
An air marshall’s disclosure that the TSA had cancelled flights due to terrorism concerns was not prohibited.
MacLean’s disclosure was not prohibited by the TSA’s regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as “law” under that statute. Throughout Section 2302, Congress repeatedly used the phrase “law, rule, or regulation.” But Congress did not use that phrase in the statutory language at issue here; it used the word “law” standing alone. Congress’s choice to say “specifically prohibited by law,” instead of “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations. In addition, Section 2302(b)(8)(A) creates a second exception for disclosures “required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” That the second exception is limited to actions by the President himself suggests that the first exception does not include action taken by executive agencies. Finally, interpreting the word “law” to include rules and regulations could defeat the purpose of the whistle-blower statute. That interpretation would allow an agency to insulate itself from Section 2302(b)(8)(A) simply by promulgating a regulation that “specifically prohibited” all whistleblowing.
714 F. 3d. 1301, affirmed.
13-894 DHS v. MacLean
Roberts, C.J.; Sotomayor, J., dissenting.