Yesterday the Supreme Court heard oral arguments in Department of Homeland Security v. MacLean.  This case arises under the Whistleblower Protection Act. The Whistleblower Protection Act prohibits individuals in positions of authority from taking a “personnel action” against a government employee when the employee makes a disclosure, which the employee reasonable believes to evidence a “substantial and specific danger to public health and safety, if such disclosure is not specifically prohibited by law.”  The issue before the Court is when a federal statute bars whistleblower from making disclosures that are “specifically prohibited by law,” does this bar also apply to disclosures prohibited by agency regulations?

The MacLean case has been featured in previous posts on this blog.  This case stems from Mr. MacLean’s actions in 2003, when he gave information to a MSNBC reporter regarding the Department of Homeland Security’s Transportation Security Agency’s (TSA) plan to remove U.S. air marshals from long distance flights during a heightened terrorist alert.  Mr. MacLean was concerned that the suspension of overnight missions created a danger to the flying public.

MacLean complained to his supervisor and to the Office of Inspector General and both took no action. He then decided to give information to the reporter. The reporter published an article criticizing the plan. The TSA withdrew its plan after criticism from the public and members of Congress. Some two years later the TSA found out MacLean was the source of the MSNBC story and fired him for releasing the information which is against agency regulations.

You can read the transcript of the oral arguments in Department of Homeland Security v. MacLean.

Read the briefs in Department of Homeland Security v. MacLean.