Department of Homeland Security v. MacLean

Whether Congress intended the Whistleblower Protection Act to bar penalties when a government employee unilaterally exposes sensitive security information.

Respondent—a Federal Air Marshal—was notified by the Transportation Security Administration ("TSA") of a potential plot to hijack U.S. airliners. Respondent then received an TSA text message, which canceled missions on flights from Las Vegas. Respondent—concerned about the directive—disclosed information to a reporter who later published an article. TSA informed Respondent about his unauthorized disclosure of sensitive security information (SSI), and subsequently removed Respondent from his position.

Respondent petitioned for review of the decision that sustained his removal by the TSA. He claimed that his disclosure is protected under the Whistleblower Protection Act (WPA). He stated that he was not charged under the right regulation, and that his removal violates due process because the TSA’s text message was not labeled SSI when it was sent.

The Federal Circuit Court of Appeals rejected Respondent’s due process argument, stating that a nondisclosure agreement put Respondent on notice that revealing information would lead to his removal. However, the court highlighted that a government employee may not be removed when a disclosure is not specifically prohibited by law. 5 U.S.C. § 2302(b)(8). The court then determined that such specificity was not met in Respondent’s case, and thus he could not be removed.

Petitioner now appeals to the United States Supreme Court, and specifically argues that this case warrants the Court’s immediate attention. Petitioner asks the Court to determine whether a government employee in Respondent’s situation may unilaterally expose security vulnerabilities without penalty.