Dep't of Homeland Sec. v. Maclean, No. 13–894.

CourtU.S. Supreme Court
Writing for the CourtChief Justice ROBERTSdelivered the opinion of the Court.
Citation135 S.Ct. 913,190 L.Ed.2d 771
Decision Date21 January 2015
Docket NumberNo. 13–894.

135 S.Ct. 913
190 L.Ed.2d 771

Robert J. MACLEAN.

No. 13–894.

Supreme Court of the United States

Argued Nov. 4, 2014.
Decided Jan. 21, 2015.

Ian H. Gershengorn, for Petitioner.

Neal K. Katyal, Washington, DC, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioner.

Thomas Devine, Government Accountability Project, Washington, DC, Neal Kumar Katyal, Counsel of Record, Hagan Scotten, Elizabeth Austin Bonner, Hogan Lovells U.S. LLP, Washington, DC, for Respondents.

Stevan E. Bunnell, General Counsel, U.S. Department of Homeland Security, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Ian Heath Gershengorn, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Douglas N. Letter, H. Thomas Byron III, Michael P. Goodman, Attorneys, Department of Justice, Washington, DC, for Petitioner.


Chief Justice ROBERTSdelivered the opinion of the Court.

Federal law generally provides whistleblower protections to an employee who discloses information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A). An exception exists, however, for disclosures that are “specifically prohibited by law.” Ibid.Here, a federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights. The question presented is whether that disclosure was “specifically prohibited by law.”



In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135. As relevant here, that Act provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security ... if the Under Secretary decides that disclosing the information would ... be detrimental to the security of transportation.” 49 U.S.C. § 114(r)(1)(C).

Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of what it called “sensitive security information.” See 67 Fed.Reg. 8351 (2002). The regulations described 18 categories of sensitive security information, including “[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.” 49 CFR § 1520.7(j) (2002). Sensitive security information is not classified, so the TSA can share it with individuals who do not have a security clearance, such as airport employees. Compare Exec. Order 13526, § 4.1, 3 CFR 298, 314–315 (2009 Comp.), with 49 CFR § 1520.11(c) (2013).


Robert J. MacLean became a federal air marshal for the TSA in 2001. In that role, MacLean was assigned to protect passenger flights from potential hijackings. See 49 U.S.C. § 44917(a).

135 S.Ct. 917

On July 26, 2003, the Department of Homeland Security (DHS) issued a confidential advisory about a potential hijacking plot. The advisory said that members of the terrorist group al Qaeda were planning to attack passenger flights, and that they “considered suicide hijackings and bombings as the most promising methods to destroy aircraft in flight, as well as to strike ground targets.” App. 16. The advisory identified a number of potential targets, including the United Kingdom, Italy, Australia, and the east coast of the United States. Finally, the advisory warned that at least one of the attacks “could be executed by the end of the summer 2003.” Ibid.

The TSA soon summoned all air marshals (including MacLean) for face-to-face briefings about the hijacking plot. During MacLean's briefing, a TSA official told him that the hijackers were planning to “smuggle weapons in camera equipment or children's toys through foreign security,” and then “fly into the United States ... into an airport that didn't require them to be screened.” Id.,at 92. The hijackers would then board U.S. flights, “overpower the crew or the Air Marshals and ... fly the planes into East Coast targets.” Id.,at 93.

A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous. He also believed that the cancellations were illegal, given that federal law required the TSA to put an air marshal on every flight that “present[s] high security risks,” 49 U.S.C. § 44917(a)(2), and provided that “nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority,” § 44917(b). See App. 95, 99, 101.

MacLean therefore asked a supervisor why the TSA had canceled the missions. The supervisor responded that the TSA wanted “to save money on hotel costs because there was no more money in the budget.” Id.,at 95. MacLean also called the DHS Inspector General's Office to report the cancellations. But a special agent in that office told him there was “nothing that could be done.” Id.,at 97.

Unwilling to accept those responses, MacLean contacted an MSNBC reporter and told him about the canceled missions. In turn, the reporter published a story about the TSA's decision, titled “Air Marshals pulled from key flights.” Id.,at 36. 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.” Ibid.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.” Id.,at 37.

After MSNBC published the story, several Members of Congress criticized the cancellations. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights. Id.,at 50.

At first, the TSA did not know that MacLean was the source of the disclosure. In September 2004, however, MacLean appeared on NBC Nightly News to criticize the TSA's dress code for air marshals, which he believed made them too easy to identify. Although MacLean appeared in disguise, several co-workers recognized his voice, and the TSA began investigating the appearance. During that investigation, MacLean admitted that he had disclosed the text message back in 2003. Consequently,

135 S.Ct. 918

in April 2006, the TSA fired MacLean for disclosing sensitive security information without authorization.

MacLean challenged his firing before the Merit Systems Protection Board, arguing in relevant part that his disclosure was protected whistleblowing activity under 5 U.S.C. § 2302(b)(8)(A). The Board held that MacLean did not qualify for protection under that statute, however, because his disclosure was “specifically prohibited by law.” 116 M.S.P.R. 562, 569–572 (2011).

The Court of Appeals for the Federal Circuit vacated the Board's decision. 714 F.3d 1301 (2013). The parties had agreed that, in order for MacLean's disclosure to be “specifically prohibited by law,” it must have been “prohibited by a statute rather than by a regulation.” Id.,at 1308(emphasis added). Thus, the issue before the court was whether the statute authorizing the TSA's regulations—now codified at 49 U.S.C. § 114(r)(1)—“specifically prohibited” MacLean's disclosure. 714 F.3d, at 1308.*

The court first held that Section 114(r)(1)was not a prohibition. The statute did “not expressly prohibit employee disclosures,” the court explained, but instead empowered the TSA to “prescribe regulations prohibiting disclosure[s]” if the TSA decided that disclosing the information would harm public safety. Id.,at 1309. The court therefore concluded that MacLean's disclosure was prohibited by a regulation, which the parties had agreed could not be a “law” under Section 2302(b)(8)(A). Ibid.

The court then held that, even if Section 114(r)(1)were a prohibition, it was not “sufficiently specific.” Ibid.The court explained that a law is sufficiently specific only if it “requires that matters be withheld from the public as to leave no discretion on the issue, or ... establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Ibid.(quoting S.Rep. No. 95–969(1978), 1978 U.S.C.C.A.N. 2723). And Section 114(r)(1)did not meet that test because it “provide[d] only general criteria for withholding information and [gave] some discretion to the [TSA] to fashion regulations for prohibiting disclosure.” 714 F.3d, at 1309. The court accordingly vacated the Board's decision and remanded for a determination of whether MacLean's disclosure met the other requirements under Section 2302(b)(8)(A). Id.,at 1310–1311.

We granted certiorari. 572 U.S. ––––, 134 S.Ct. 2290, 189 L.Ed.2d 172 (2014).


Section 2302(b)(8)provides, in relevant part, that a federal agency may not take

“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,

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