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U.S. Supreme Court Supports Whistleblower Claim of Employee Fired for Leaking Sensitive Information

Strictly construing the Whistleblower Protection Act (“WPA”) against the employer (here, the government) and in favor of the employee, the U.S. Supreme Court has ruled a federal air marshal’s whistleblower claim may proceed even though he had leaked confidential air security plans to the media in apparent violation of a regulation. Department of Homeland Security v. MacLean, No. 13- 894 (U.S. Jan. 21, 2015). The Court was not swayed by the government’s effort to broadly interpret an exception the WPA as excluding the employee from whistleblower protection.

The Facts

Federal air marshal Robert MacLean secretly disclosed to an MSNBC reporter that the Transportation Security Administration (“TSA”) was removing air marshals from some overnight flights only days after the Department of Homeland Security (“DHS”) issued a confidential advisory about a potential Al Qaeda hijacking plot on domestic flights. After MSNBC published a story based on this leaked information, members of Congress criticized the TSA plan. Within 24 hours, TSA reversed its decision. 

TSA later discovered MacLean was the source of the unauthorized disclosure and terminated his employment. MacLean then commenced a whistleblower claim alleging that he was wrongfully terminated for engaging in activity protected by the WPA. The central question in the case was whether MacLean’s disclosure was protected activity. 

Whistleblower Protection Act

The WPA prohibits a federal agency from taking action against an employee or applicant “because of (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences (i) any violation of any law, rule, or regulation . . . .” 5 U.S.C. §2302(b)(8). 

However, the WPA protection applies only “if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” Therefore, this case turned on whether MacLean’s disclosure was “specifically prohibited by law.”

Disclosure Not Prohibited

The government employer argued that MacLean’s disclosure was prohibited by law, relying on the Homeland Security Act. That statute, however, merely directed DHS to “prescribe regulations prohibiting the disclosure of information if the Under Secretary decides that disclosure would . . . be detrimental to the security of transportation.” 49 U.S.C. §114(r)(1)(C). DHS issued regulations prohibiting the unauthorized disclosure of “sensitive security information,” which included information about deployment of federal air marshals. 49 CFR §1520.7(j). The government claimed that because those regulations prohibited MacLean’s disclosure, the disclosure was “prohibited by law” and not protected by the WPA.

The U.S. Supreme Court rejected the government’s contention and ruled the WPA’s whistleblower protection applied to MacLean. Although the WPA excludes from its protections disclosures that are “specifically prohibited by law,” the Court read that exception narrowly, thus effectively reading the protections of the WPA broadly. The Court ruled that even though MacLean’s disclosures were prohibited by agencyregulation, they were not prohibited by law — that is, a statute enacted by Congress. Therefore, the Court permitted MacLean to proceed with his whistleblower claim.

Implications

This decision, though addressing a WPA protected activity provision, is consistent with a trend in the lower courts broadening the scope and application of whistleblower laws, and to restrain or reject limiting principles. 

Courts at all levels continue to take a broad view of the application of whistleblower protection laws, sometimes making significant efforts (including using, at times, what to some may seem strained reasoning) to protect employee whistleblowers. Before terminating any employee who claims he “blew the whistle,” an employer should carefully consider its decision. Even though the employer may contend the termination is not retaliatory, and based on lawful reasons alone, it must be prepared to rebut the terminated employee’s claim by establishing a clear, well-documented non-retaliatory reason for terminating the employment relationship with the whistleblower. 

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 25

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About this Author

Richard J. Cino, Jackson Lewis, Corporate Governance Attorney, Contract Breach Lawyer
Office Managing Principal

Richard J. Cino is the Office Managing Principal of the Morristown and Monmouth County, New Jersey, offices of Jackson Lewis P.C. He is also Co-Leader of the Corporate Governance and Internal Investigations Practice Group.

Mr. Cino has a broad area of practice and responsibility with the firm. He acts as lead counsel on all aspects of employment litigation, including defending claims of whistleblowers under various state and federal laws including the Sarbanes-Oxley Act, sexual harassment, all types of discrimination,...

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David R. Jimenez, Jackson Lewis, Title VII discrimination claims Lawyer, Fair Labor Standards Attorney
Principal

David R. Jimenez is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. He is the Co-Chair of the firm’s Corporate Governance and Internal Investigations Practice Group.

Mr. Jimenez advises employers on complex matters and litigation including:

  • Class Action cases involving Title VII discrimination claims, the Fair Labor Standards Act, and matters related to contingent, temporary, and independent contractor workforce categorization;

  • Domestic and international corporate re-organizations and reductions in force;

  • Sarbanes Oxley, whistleblower, retaliation, employee investigations and corporate governance matters;

Mr. Jimenez also provides counsel to employers on a variety of strategic matters including HR compliance, outsourcing/in-sourcing HR initiatives, code of conduct development and organizational compliance, and management of employment law exposures.

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L. Dale Owens employment litigation law attorney Jackson Lewis law firm
Principal

L. Dale Owens is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He has represented employers in all types of employment litigation.

Mr. Owens defends employers in multi-plaintiff and collective actions under the Fair Labor Standards Act, as well as Rule 23 class actions. He also defends employers against discrimination claims (race, sex, age, religion, and national origin), as well as claims of sexual harassment, hostile environment, and retaliation. Mr. Owens defends employers in contract disputes, principal and fiduciary claims relating to...

404-586-1838