U.S. Supreme Court: Air Marshal Can Proceed with Whistleblower Claim

Jan 21 2015 - Discrimination - Gail Cecchettini Whaley

The U.S. Supreme Court ruled in favor of a fired air marshal today, allowing him to proceed with his whistleblower claim in a homeland security case.

Robert J. MacLean was a federal air marshal for the transportation Security Administration (TSA). In his role, MacLean was assigned to protect passenger flights from potential hijackings.

In 2003, MacLean contacted a reporter for MSNBC and told him that the TSA was cancelling overnight flights for air marshals in order to save money, even though TSA was in the midst of a hijacking alert. MacLean believed that cancelling those flights during a hijacking alert was dangerous and illegal, given that federal law required the TSA to put an air marshal on every flight that “present[s] high security risks.” He brought the story to the press after supervisors told him that nothing could be done.

MSNBC published the story, and the TSA drew criticism for its decision from members of Congress. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights.

A few years after the report, TSA discovered that MacLean was the one who had contacted MSNBC. He was fired for disclosing sensitive security information without authorization.

Generally, federal law provides whistleblower protection to employees who disclose information revealing “any violation of law, rule or regulation,” or a “substantial and specific danger to public health or safety.”  There is an exception, however, for whistleblower disclosures that are “specifically prohibited by law.” Government lawyers argued that TSA regulations prohibit employees from disclosing sensitive security measures.

In a 7-2 decision today, the U.S. Supreme Court held that MacLean’s actions did not violate any federal law, just TSA regulations.  The Court noted that the government had legitimate security concerns, but they must be addressed by the president through executive order or by Congress. “Although Congress and the President each has the power to address the government’s concerns, neither has done so. It is not our role to do so for them,” wrote Chief Justice John Roberts for the majority.

Whistleblower claims continue to rise at both the federal and state level. And California offers even broader protections to whistleblowers than federal law.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can read more about Whistleblower Protections and Preventing Retaliation on HRCalifornia. Not a member? See how CalChamber can help you.

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