Department of Homeland Security v. MacLean

Robert MacLean (plaintiff) worked as a federal air marshal for the Transportation Security Administration (TSA), an agency of the United States Department of Homeland Security (DHS) (defendant). The Homeland Security Act, 49 U.S.C. § 114, provided that the TSA must prescribe regulations prohibiting the disclosure of information that would be detrimental to the security of transportation. A TSA regulation, 49 C.F.R. § 1520.7(j), prohibited the disclosure of sensitive security information, such as information concerning the deployment of federal air marshals. In 2003, the DHS issued a confidential advisory regarding a potential airplane-hijacking plot. The TSA met with its air marshals and briefed them on the plot. Several days later, MacLean was notified that all overnight missions from his station in Las Vegas were canceled for a period. MacLean believed the cancellations were not only dangerous but illegal as well due to the hijacking advisory. MacLean inquired about the cancellations with a supervisor and reported the cancellations to the DHS Inspector General’s Office. Unhappy with the responses, MacLean contacted an MSNBC reporter and told him about the cancellations. MSNBC published the story, and the TSA reversed its cancellation decision within a day. The TSA terminated MacLean when it discovered that he was the source for the MSNBC story. MacLean brought an action under 5 U.S.C. § 2302, a whistleblower-protection law. DHS argued that MacLean’s disclosures were specifically prohibited by law. The circuit court held that § 114 did not prohibit employee disclosures; it merely authorized the TSA to promulgate rules prohibiting disclosures. The United States Supreme Court granted certiorari.