The Supreme Court issued a 7-2 decision today siding with a TSA Air Marshal who was fired by the agency for revealing to a reporter an operational agency decision canceling certain air marshall missions in the middle of a heightened high jacking alert.
Robert MacLean unsuccessfully appealed his firing to the Merit Systems Protection Board, arguing that it was reprisal for protected whistleblowing. The MSPB sided with the government’s argument that what MacLean did was “specifically prohibited by law,” and therefore did not qualify as protected whistleblowing.
When the Court of Appeals for the Federal Circuit vacated the MSPB decision, the government took its case to the Supreme Court. That court now agrees with the Federal Circuit and MacLean’s removal remains overturned.
As to the government’s argument that a TSA regulation constituted a “law,” the Court had this to say: “…regulations do not qualify as ‘law’ under that statute…” and the statute itself “does not prohibit anything.”
As for the government’s contention that providing whistleblower protection to officials like MacLean “would gravely endanger public safety,” the Court says, while those concerns are “legitimate…they must be addressed by Congress or the President, rather than by this Court.”
FedSmith.com author and founding partner with Tully Rinckey PLLC Mathew Tully, who was also the counsel of record on the amicus curiae brief, said the following about the court’s decision:
“The Supreme Court just delivered a reality check to agency leadership: You can’t make a regulation, call it a law, and use the regulation to punish whistleblowers. If you want to make laws, quit and run for Congress. If you want to run an agency, be prepared to hear from employees who, thanks to today’s decision, can blow the whistle on government fraud, waste and mismanagement without fear of retaliation justified by semantics.”