Whitleblower Protections Continue to Gain Momentum, Fueled by Supreme Court Ruling

The Supreme Court last week continued its trend toward expansive protection of whistleblowers under federal law. In Department of Homeland Security v. MacLean, the Court held that the Transportation Security Administration (“”TSA””) violated the federal Whistleblower Protection Act when it discharged a federal air marshal because he disclosed to the media the TSA’s plan to cancel certain overnight air-marshal missions. Then-Air-Marshal Robert J. MacLean contacted a MSNBC reporter when he learned about the TSA’s 2003 decision, in the midst of a terrorist hijacking alert, to abort overnight missions (i.e., not staff certain flights with air marshals) as a cost-savings measure. As a result of backlash from the MSNBC story that flowed from MacLean’s anonymous tip, the TSA reversed its decision and again staffed the subject flights. When the TSA later learned that MacLean was the anonymous tipster, it terminated his employment, citing a TSA regulation that prohibits public disclosure of “”sensitive security information.”” MacLean challenged his dismissal under procedures afforded to federal employees, contending that the TSA violated the federal Whistleblower Protection Act (“”WPA””) by discharging him. The WPA protects federal employees who, among other things, disclose information that the employee reasonably believes evidences either “”the 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). MacLean maintained that his tip to MSNBC fell within the ambit of this protection — he reasonably believed that the TSA was violating federal law by failing to put air marshals on high-risk flights, and he also believed that the TSA’s decision posed a public safety risk. As such, the TSA violated the WPA by terminating his employment for blowing the whistle on the TSA’s unlawful and dangerous plan.

The TSA, however, disagreed. According to the TSA, MacLean’s disclosure fell within an exception to the protections on which he relied — under the WPA, even disclosures of unlawful or dangerous plans may not be protected if those disclosures are “”specifically prohibited by law.”” A TSA regulation prohibits disclosure 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). Thus, the TSA stood by its decision to dismiss MacLean, contending that his tip disclosed sensitive security information about the TSA’s air-marshal-deployment plans, thereby making his conversation with the MSNBC reporter a terminable offense.

The Supreme Court, in a 7-2 decision, sided with MacLean. Treating the matter as one of statutory interpretation, the Court held that MacLean’s tip fell within the WPA’s protection as a disclosure of information that evidences violation of law and poses a substantial public safety risk. Further, the WPA exception for disclosures “”specifically prohibited by law”” did not apply because MacLean’s disclosure was not prohibited by any statute — instead it was prohibited only by a regulation, which takes it outside of the exception’s ambit. The Court therefore held that the exception for unlawful disclosures did not apply and affirmed the lower court’s decision to remand the case for determination of whether the WPA entitled MacLean to a remedy.

An immediate and obvious consequence of the Court’s ruling is that federal employees who blow the whistle on unlawful or dangerous government acts may be protected from adverse employment action under the WPA, even if their disclosures violate a rule, regulation or policy. In other words, the exception to the Act’s protection for disclosures “”prohibited by law”” will apply only to those disclosures specifically prohibited by statute. Thus, so long as federal employees can otherwise prove that their public disclosures fall within the WPA’s protections (as MacLean must now do) and are not expressly prohibited by statute, they will enjoy job protection in the wake of any such whistleblowing.

Perhaps more notable about the case, beyond the Court’s specific holding, is its continuation of the trend toward broad, expansive protection of whistleblowers under federal law. Dating all the way back to the Enron and Worldcom scandals of the early 2000s and perhaps even earlier, all three branches of the federal government have participated in a systematic and undeniable expansion of whistleblower protections. For example, over the course of the last 15 years, Congress enacted whistleblower protections in the Sarbanes-Oxley Act or 2002 (SOX), the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Consumer Financial Protection Act, the Consumer Product Safety Act, the FDA Food Safety Modernization Act, the Moving Ahead for Progress in the 21st Century Act (MAP-21), and the Patient Protection and Affordable Care Act (ACA), to name just a few of the key statutory initiatives. And unlike the WPA, which by its terms applies only to federal employees, most of the other statutes protect private-sector workers who blow the whistle on their non-government employers.

President Obama has likewise touted protection of whistleblowers as an important goal. The ethics agenda published on his Change.gov site, detailing “”The Obama-Biden Plan”” upon their first election to office in 2008, included “”Protect[ing] Whistleblowers”” as a top priority. And the federal judiciary has joined its sister branches in this undeclared but apparent war on retaliation by consistently interpreting the whistleblower protection laws enacted by Congress broadly and expansively. The Supreme Court’s decision last week in Department of Homeland Security v. MacLean follows on the heels of its 2014 decision in Lawson v. FMR LLC., which expanded the reach of SOX’s whistleblower protections beyond the employees of public companies to whom the Act’s text specifically refers, to encompass employees of private contractors and sub-contractors as well. Thus, in both of its most recent opportunities to interpret the myriad whistleblower protections afforded by legislation, the Supreme Court has decisively sided with employee whistleblowers.

The progressive and continued expansion of whistleblower protections under federal law means that employers must stay abreast of this ever-changing area of the law. The patchwork of statutes enacted by Congress over the last decade or so impose specific restrictions on employers in a wide range of industries, and to the extent our trusty friend Google can provide us any reliable hint as to what is happening in the world, it shows that plaintiffs’ lawyers see the wide-ranging and far-reaching whistleblower protections as something of a gold mine — a quick search yields a multitude of hits for lawyers offering free consultations to anyone who believes he or she has suffered mistreatment as a whistleblower. This comes as no surprise, given that courts continue to interpret the law in favor of employee whistleblowers, and the latest decisions of the Supreme Court confirm that trend.