Supreme Court Will Hear Air Marshal’s Whistleblower Case

Supreme Court Will Hear Air Marshal’s Whistleblower Case

The U.S. Supreme Court has agreed to decide whether Robert J. MacLean, a federal air marshal, was unfairly fired for leaking sensitive information that he believed endangered the public. The case, Department of Homeland Security v. MacLean, will be heard sometime during the court’s term that begins next October.

In 2003, MacLean was working for the Transportation Security Administration (TSA) as an air marshal. He was briefed about a potential terrorist attack and, shortly thereafter, received notice from TSA that the agency was reducing the number of undercover air marshals on overnight trips due to budget deficits. MacLean voiced his concerns to his boss, who told him to keep quiet. Instead, MacLean leaked the information to MSNBC. Within the next day, the Department of Homeland Security had canceled the manpower reduction order.

MacLean, whose identity had been concealed after the leak, was fired by TSA in 2006 when his identity was discovered. MacLean appeared on an NBC Nightly News program, regarding a different incident, but his disguise was inadequate.

A lower court ruled that MacLean was entitled to argue that he was protected by whistleblower laws. However, the government is asking the Supreme Court to reverse that decision, arguing it “effectively permits individual federal employees to override the TSA’s judgments about the dangers of public disclosure.”

MacLean’s response portrays him as a hero who prevented a potential tragedy and helped change government policy. MacLean had previously argued that TSA’s plan to eliminate the use of air marshals on overnight trips was not considered sensitive information by the agency because it had been sent unencrypted to his cellphone.

We will report back when the Court provides an answer to what should happen when an individual employee’s determination of what public safety requires clashes with the determinations of his supervisors as to what’s required. Does the concern for public safety outweigh the usual requirement to follow the chain of command?

If you have any questions about the case discussed above or would like to discuss other employment law matters, please contact me or the Scarinci Hollenbeck attorney with whom you work.