“You Can’t Blow The Whistle On Us, Whistleblower!” Says TSA.

The Homeland Security Act of 2002 provides the Transportation Security Administration [TSA] shall prescribe regulations prohibiting disclosure of information detrimental to the country’s security, which regulations TSA passed. In 2003, TSA briefed all air marshals, including the plaintiff here, about a potential plot to hijack passenger flights. A few days later, in a move to save money, TSA cancelled all overnight missions for air marshals from Las Vegas, where plaintiff was stationed. Believing the cancelling of air marshals on those flights at the exact time of a high security alert for hijackings to be dangerous and illegal, plaintiff contacted a news reporter about the situation. A few years later, TSA discovered plaintiff was the source of the leak of information and fired him. Plaintiff challenged his firing, contending he was involved in whistleblowing activity under 5 U.S.C. § 2302(b)(8)(A), which protects employees who reveal “a substantial and specific danger to public health or safety.” The administrative board found plaintiff did not qualify for whistleblower protection because his disclosure was prohibited by law. The United States Supreme Court held that plaintiff’s violations of TSA’s regulations did not amount to a violation of law, noting that such a finding would permit every government agency to insulate itself from providing whistleblower protection by promulgating a regulation that specifically prohibits whistleblowing. (Department of Homeland Security v. MacLean (U. S. Sup. Ct.; January 21, 2015) ___U.S.___, [135 S.Ct. 913, 190 L.Ed.2d 771].)