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Supreme Court Ruling Provides Significant Protection to Whistleblowers

In a 7-2 decision last week, the Supreme Court issued a ruling that provides significant protection to whistleblowers who bring potential improprieties within the federal government to light.  Although premised on mere statutory interpretation, the opinion in Department of Homeland Security v. MacLean, ___ S. Ct. ____, No. 13-893, 2015 WL 248560 (Jan. 21, 2015), can also be read as a signal that the nation’s high court believes that whistleblowers of all kinds–whether those who expose fraud on the government, or those reporting on wrongful action within the government–deserve significant legal protection when they bring wrongful actions to light.

In MacLean, the plaintiff, Robert MacLean, was a former federal air marshal who served on domestic flights following the September 11, 2001, attacks. In mid-2003, the Transportation Security Administration (“TSA”) received information about potential plots involving hijackers entering the United States via international flights and then boarding connecting flights in order to use airplanes to attack East Coast targets. Shortly after being briefed on the threat, MacLean and other air marshals were informed that the TSA was temporarily removing air marshals from overnight assignments from Las Vegas. MacLean anonymously informed MSNBC of the TSA’s decision and its relation to the new hijacking threat. Shortly after MSNBC reported the story, the TSA reversed its decision. The TSA did not immediately learn that MacLean was the source of the information, but it eventually did, and in 2006, it fired MacLean for disclosing sensitive security information without authorization.

MacLean challenged his firing to the Merit Systems Protection Board (“MSPB”) under the federal government’s Whistleblower Protection Act (5 U.S.C. § 2302(b)(8)(A)) (“WPA”), which shields federal employees from adverse employment actions in response to an employee’s disclosure of either “any violation of any law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,” unless the disclosure is “specifically prohibited by law.” The MSPB found that the law authorizing the TSA’s regulations (49 U.S.C. § 114(r)), did, in fact, specifically prohibit the disclosure. In MacLean’s appeal of the MSPB’s decision, the Court of Appeals for the Federal Circuit reversed the MSPB’s decision, finding that the TSA statute did not prohibit anything and that it merely authorized the creation of regulations that could purport to prohibit disclosures. Therefore, because MacLean’s disclosure was prohibited only by a regulation, and not the TSA law itself, the Federal Circuit found that MacLean was protected by the WPA, because his disclosure was not “specifically prohibited by law.”

In the government’s appeal, the Supreme Court agreed with the Federal Circuit and also ruled in MacLean’s favor. Although the decision, authored by Chief Justice John Roberts, was premised on a dry interpretation of the WPA’s statutory language, the Court also made multiple statements supportive of whistleblowers and the purpose of the WPA. In finding that the phrase “specifically prohibited by law” did not extend to regulations created by agencies under authority of laws, the Court observed that “Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word ‘law.’” In evaluating whether the TSA statute contained any specific prohibition, the Court found that the stature “affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure,” and, therefore, did not itself prohibit anything. In short, “It is the TSA’s regulations—not the statute—that prohibited MacLean’s disclosure. And . . . a regulation does not count as ‘law’ under the whistleblower statute.” Armed with the Supreme Court’s ruling, MacLean will now return to the MSPB to once again attempt to gain reinstatement into his former job.

Although MacLean only applied to federal employee whistleblowers reporting on misconduct within the federal government, the Supreme Court’s decision suggests potential friendliness to whistleblowers of all kinds, such as qui tam relators who, via the False Claims Act, expose fraud perpetrated on the federal government by private businesses and individuals. In addition to providing financial incentives to whistleblowers, the False Claims Act contains an anti-retaliation provision (31 U.S.C. § 3730(h)) that protects employees who blow the whistle on their employers from adverse employment actions. Employee whistleblowers that are “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment” in response to actions taken under the False Claims Act are entitled to relief, including reinstatement, back pay, other damages or compensation, and reimbursement of attorneys’ fees and court costs. In many ways, this anti-retaliation provision is a parallel provision in the False Claims Act that provides similar employee protection to the WPA. And although the Supreme Court’s ruling in MacLean did not provide any additional specific protection to False Claims Act whistleblowers, it can certainly be read as an appreciation of the importance of and a desire to protect all whistleblowers, whether inside or outside the government.

© 2019 by Tycko & Zavareei LLP

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About this Author

Andrew J. Silver, Tycko & Zavareei Law Firm, Attorney
Associate

Andrew J. Silver graduated magna cum laude as a member of the Order of the Coif from Boston College Law School in 2012. While in law school, he was selected as an Articles Editor of the Boston College International & Comparative Law Review, for which he previously served as a Staff Writer. In 2007, Mr. Silver graduated from Tufts University with a B.A. in Economics and a concentration in Communication and Media Studies.

Prior to joining Tycko & Zavareei LLP, Mr. Silver worked as a student-attorney at the Boston College Legal Assistance Bureau, practicing housing law, family...

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