## Facts

- TSA was authorized by statute to issue regulations barring disclosure of information detrimental to transportation security and issued regulations designating certain operational details as “sensitive security information” (SSI).
- In July 2003, TSA briefed federal air marshals about a potential hijacking plot.
- Shortly thereafter, Robert J. MacLean, a federal air marshal in Las Vegas, received a TSA text message canceling all overnight missions from Las Vegas until early August.
- MacLean believed the cancellation during an active threat created a substantial and specific danger to public safety and was unlawful.
- MacLean raised concerns to his supervisor and the DHS Inspector General; after receiving no satisfactory response, he disclosed the mission-cancellation decision to a reporter.
- A news outlet published the disclosure; members of Congress criticized TSA, and TSA reversed course within a day and restored overnight missions.
- After an investigation in which MacLean admitted his role in the media disclosure, TSA removed him for unauthorized disclosure of SSI under its SSI regulation.
- MacLean sought protection under the Whistleblower Protection Act (WPA), which protects qualifying disclosures unless they are “specifically prohibited by law.”
- The MSPB denied protection, concluding the disclosure was “specifically prohibited by law”; the Federal Circuit vacated; the Supreme Court granted certiorari.

## Issues

1. Whether the WPA exception for disclosures “specifically prohibited by law” includes disclosures prohibited only by agency regulation.
2. Whether 49 U.S.C. § 114(r)(1), which authorizes TSA to issue nondisclosure regulations, itself constitutes a statutory prohibition that triggers the WPA exception.

## Decision

- The Supreme Court affirmed the Federal Circuit, 7–2 (Roberts, C.J.).
- “Law” in the WPA exception (“specifically prohibited by law”) does not include agency rules or regulations.
- Section 114(r)(1) does not itself prohibit disclosure; it authorizes TSA to prescribe regulations.
- Because MacLean’s disclosure was barred only by regulation (SSI rules), it was not “specifically prohibited by law” and remained protected under the WPA.

## Legal Principles

- In the WPA, Congress’s use of “law” in the exception—contrasted with “law, rule, or regulation” elsewhere in the same provision—indicates that “law” refers to statutes, not regulations.
- A statutory authorization for an agency to issue nondisclosure regulations is not itself a statutory disclosure prohibition for purposes of the WPA exception.
- Reading “law” to include regulations would permit agencies to defeat WPA protections by adopting broad regulatory prohibitions; the WPA’s exception is construed narrowly to prevent that result.
- Policy concerns about security-sensitive disclosures do not justify expanding the WPA exception beyond the statutory text; any expansion is for Congress.

## Conclusion

The Court held that the WPA’s “specifically prohibited by law” exception does not cover disclosures prohibited only by agency regulation, and that TSA’s governing statute merely authorized regulations rather than directly prohibiting disclosure; therefore, MacLean’s disclosure was protected whistleblowing and could not be excluded from WPA coverage on the basis of the SSI regulation alone.


Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913 (2015)