TBA Law Blog


Posted by: Christy Gibson on Mar 17, 2015

David A. Burkhalter, II and D. Alexander Burkhalter, III*

What is a whistleblower?  A hero?  A disgruntled employee?  Or, perhaps, in some cases, a traitor?  To answer these questions, it often depends on the type of whistleblowing at issue.  For example, is it private sector whistleblowing where an employee exposes fraudulent acts of a greedy corporation where millions of dollars have been stolen from Medicare? Is it public sector whistleblowing where a federal employee leaks classified and top-secret information that jeopardizes national security?  Was this employee a “traitor” or “national security threat”.[i]

Over the past few decades, the laws protecting and incentivizing whistleblowers have undergone dramatic transformation, resulting in a substantial increase in whistleblowing cases.  For example, the U.S. Department of Justice reported that for FY 2014, it recovered nearly $3 billion dollars related to lawsuits filed under the qui tam provisions of the False Claims Act, and during the same period the government paid out $435 million to the whistleblowers who exposed the fraud by filing the False Claims Act complaints, “often at great risk to their careers.”[ii]  Whistleblowing against federal agencies, however, does not offer the same incentives, but can involve some protection from retaliation. 

There are clearly valid competing interests when it comes to whistleblowing in the public sector, such as transparency in government versus governmental secrecy necessary to achieve national security goals.  It is these competing interests that caused the U.S. Supreme Court to weigh in on the extent of anti-retaliatory protection in Dep’t of Homeland Security v. MacLean, where the Court ultimately sided with the whistleblower.   

In the wake of the 9/11 terrorist attacks, Congress felt the necessary pressure to increase the nation’s aviation security.  This resulted in the Homeland Security Act of 2002, which gave the Transportation Security Administration (“TSA”), in relevant part, the authorization to “prescribe regulations prohibiting the disclosure of information … if the Under Secretary decides that disclosing the information would … be detrimental to the security of transportation.”[iii]

Shortly after the TSA was granted this authority, the “TSA promulgated regulations prohibiting the unauthorized disclosure of ‘sensitive security information,’ which included ‘[s]pecific details of aviation security measures … [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.”[iv]  The purpose of these regulations is evident. 

Robert J. MacLean was one of the federal air marshals charged with the duty to protect the nation’s skies from potential terrorist attack.  Before working for the TSA in 2001, Maclean worked in aviation security for the Federal Aviation Administration.[v]  With years of loyalty and experience, few could have guessed that this veteran air marshal would become a whistleblower.

In July of 2003, the Department of Homeland Security (“DHS”) issued a confidential advisory that al Qaeda, the terrorist organization responsible for 9/11, was planning to attack and/or hijack passenger flights. The advisory identified several potential targets, including the United States, and “the advisory warned that at least one of the attacks ‘could be executed by the end of the summer 2003.’”[vi]

After DHS issued this advisory, the TSA, in a face-to-face briefing, informed all of the air marshals, including MacLean, about the hijacking ploy.  The hijackers’ plan was to “smuggle weapons in camera equipment or children’s toys” and, after boarding U.S. flights, they would “overpower the crew or the Air Marshals and … fly the planes into East Coast Targets.”[vii]

Only days after the face-to-face briefing—despite the heightened threat level of potential terrorist attacks—the TSA sent out a text message to the air marshals cancelling all overnight missions from Las Vegas, where MacLean was stationed, until early August 9, 2003. The cancellations meant that no air marshals would be flying cross-country—which were supposedly the most vulnerable flights—for more than a ten-day period.

In a time of suspected hijackings, MacLean believed the cancellations to not only be dangerous, but also illegal because federal law required air marshals to be on flights with “high security risks” and “nonstop, long distance flights” were given a top priority.[viii]

When MacLean delved into why the TSA canceled the missions, a supervisor responded the TSA sought “to save moneyon hotel costs because there was no more money in the budget.”[ix]  Refusing to accept his supervisor’s answer, MacLean reported the cancellations to the DHS Inspector General’s Office, but MacLean was told “nothing … could be done.”[x]

Again, refusing to accept these responses, MacLean contacted the media and reported the cancelled missions.  This resulted in a news headline “titled ‘Air Marshals pulled from key flights.’  The story reported that air marshals would ‘no longer be covering cross-country or international flights’ because the agency did not want them ‘to incur the expense of staying overnight in hotels.’  The story also reported that the cancellations were ‘particularly disturbing to some’ because they ‘coincide[d] with a new high-level hijacking threat issued by the Department of Homeland Security.’”[xi]

The story quickly gained the attention of Congress, and Senators began demanding an explanation from the TSA.  Within 24 hours, the TSA reversed its decision and put air marshals back on the flights.  MacLean’s whistleblowing efforts accomplished his objective in returning air marshals to protect these high-risk flights.  Although his identity was unknown to the public and the government, one Senator conveyed her gratitude to the anonymous air marshal “who came forward and told the truth about what was going on . . . and [brought] this issue into the spotlight.”[xii]

Almost two years later, however, the TSA discovered MacLean was the one who leaked the story to the media and he was fired for “disclosing sensitive security information without authorization” under the TSA regulation.[xiii]

In his appeal to the Merit Systems Protection Board, MacLean argued his whistleblowing was a “protected activity” under the whistleblowing statute for federal employees, but the Board disagreed and held his disclosure to be “specifically prohibited by law.”[xiv]  The Court of Appeals for the Federal Circuit overturned the Board’s decision and held the TSA regulation was not a “law” as required by the whistleblowing statute.[xv]

The Supreme Court granted certiorari on the issue of whether MacLean’s disclosure of the cancelled missions was “specifically prohibited by law”.[xvi]  If the Government could convince the Supreme Court that it was, then MacLean’s termination was justified as an exception under the whistleblower statute.  In relevant part, the whistleblower statute prohibits federal agencies from taking:

a personnel action with respect to any employee or applicant for employment 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, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

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.[xvii]

At the Supreme Court, the government put forward two statutory interpretation arguments for why MacLean’s disclosure was “prohibited by law”:  (1) “the disclosure was specifically prohibited by the TSA’s regulations on sensitive security information”, and (2) “the disclosure was specifically prohibited by [the statute], which authorized the TSA to promulgate those regulations”.[xviii]

As to the first argument, MacLean did not dispute he violated the TSA’s regulation on prohibited disclosures.  The issue, therefore, was whether the TSA’s regulation prohibiting the disclosure was a “law” as stated in the whistleblower statute. Chief Justice Roberts, in writing for the Court, determined that the TSA’s regulation was not a “law” for purposes of the whistleblower statute; this was evidenced by the fact that the whistleblower statute made repeated references to the phrase “law, rule, or regulation”, but only included “law” in the exceptions provision, and the Government conceded this point at the court of appeals.[xix]

The Government’s second argument, that MacLean’s disclosure was prohibited by the statute which authorized the TSA to prescribe regulations, was also a failing argument. The majority of the Justices reasoned that the statute only “authorized” the TSA the discretion to prescribe regulations, and the statute did not “specifically prohibit” any such disclosure as required by the whistleblower statute.[xx]

Lastly, Chief Justice Roberts addressed the Government’s final argument that if whistleblowers like MacLean were protected, this would “gravely endanger public safety” leaving the disclosure of sensitive security information to “depend on the idiosyncratic judgment of each of TSA’s 60,000 employees” but such employees “most likely lack access to all of the information that led the TSA to make particular security decisions.”[xxi]  In responding to this argument, the Court recognized those concerns as “legitimate” but stated that such concerns should be left to the legislative and executive branches.[xxii]

MacLean’s whistleblowing was a success story because it prompted an almost immediate reversal of what most would agree was an ill-advised bureaucratic decision that could have had otherwise catastrophic consequences. It will never be known whether MacLean’s whistleblowing actually prevented a hijacking that could have taken a horrible toll in human lives.  MacLean, therefore, would probably not be labeled a “wolf” or a “traitor” and most would categorize him as a “hero”.  On the other hand, had the “ill-advised bureaucratic decision” not been reversed due to Congressional pressure, MacLean’s whistleblowing could have resulted in the terrorists learning exactly which flights to target and when, with potentially equal catastrophic results, and in that case, MacLean would probably be considered a “wolf” and perhaps a “traitor”.  Flipping the facts illustrates that when it comes to federal employee whistleblowers, it may be difficult to distinguish between a sheep from a wolf in sheep’s clothing, and a hero from a traitor.

Ultimately, Dep’t of Homeland Security v. MacLean is an opinion about statutory interpretation, but it does raise important policy issues, some of which must be decided by Congress or the President by executive order.  May they have the wisdom to make the right decisions.


*David and Alexander are attorneys at Burkhalter, Rayson & Associates, P.C., a Tennessee employment law firm specializing in whistleblowing under the False Claims Act.  www.burkhalterrayson.com. The authors would like to thank Zachary J. Burkhalter for his assistance in writing this article.

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[i]See, e.g., Daniel D’Isidoro, Protecting Whistleblowers and Secrets in the Intelligence Community, Harv. Nat’L Sec. J. (Sept. 29, 2014), available at http://harvardnsj.org/2014/09/protecting-whistleblowers-and-secrets-in-the-intelligence-community/ (“There are many government officials, including former Secretary of Defense Robert Gates, who believe that Snowden is a traitor, rather than a truth-telling whistleblower…. [I]n recent years there have been several high-profile leaks of classified information, and during President Obama’s administration seven people have been charged with violations of the Espionage Act, while only three people had ever been charged under the 1917 Act prior to his Administration.”).

[ii]Office of Public Affairs, Justice Dep’t Recovers Nearly $6 Billion from False Claims Act Cases in Fiscal Year 2014, Dep’t of Justice (Nov. 20, 2014), available at http://www.justice.gov/opa/pr/justice-department-recovers-nearly-6-billion-false-claims-act-cases-fiscal-year-2014.

[iii]49 U.S.C. § 114(r)(1)(C) (2015).

[iv]Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 916 (2015) (quoting 67 Fed. Reg. 8351 (2002); 49 C.F.R. § 1520.7(j) (2002)). 

[v]MacLean v. Dep't of Homeland Sec., 116 M.S.P.R. 562, 564 (MSPB 2011).

[vi]MacLean, 135 S. Ct. at 917.

[viii]MacLean, 135 S. Ct. at 917 (quoting 49 U.S.C. § 44917(a)(2), (b)).

[ix]Id.

[x]Id.

[xi]Id. (internal citations omitted).

[xii]Knight, supra note 10, at 282 (quoting U.S. Senator Barbara Boxer, who held News Conference on Air Marshals, in FDCHemedia Pol. Transcripts, July 30, 2003 (LexisNexis)).

[xiii]MacLean, 135 S. Ct. at 917-18.

[xiv]Id. at 918.

[xv]Id.

[xvi]Id. at 918-19.

[xvii]5 U.S.C. § 2302(b)(8) (2015) (emphasis added).

[xviii]MacLean, 135 S. Ct. at 919.

[xix]Id. at 919-921.

[xx]Id. at 921-23.

[xxi]Id. at 923.