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Dep't of Homeland Sec. v. MacLean

United States Supreme Court

January 21, 2015

DEPARTMENT OF HOMELAND SECURITY, Petitioner
v.
ROBERT J. MacLEAN

Argued November 4, 2014

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

714 F.3d. 1301, affirmed.

DECISION: TSA held to violate 5 U.S.C.S. § 2302(b)(8)(A) by firing air marshal for disclosing decision to remove marshals fro certain long-distance flights to save money on hotel costs, even though TSA purportedly knew of credible threat of hijacking, as disclosure was prohibited by regulation, not statute.

LAWYERS' EDITION HEADNOTES:

PUBLIC OFFICERS § 5

WHISTLEBLOWER PROTECTION -- EXCEPTION

Headnote:[1]

Federal law generally provides whistleblower protections to an employee who discloses information revealing " any violation of any law, rule, or regulation," or " a substantial and specific danger to public health or safety." 5 U.S.C.S. § 2302(b)(8)(A). An exception exists, however, for disclosures that are " specifically prohibited by law." (Roberts, Ch. J., joined by Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ.)

[190 L.Ed.2d 772]

AVIATION § 2

TRANSPORTATION SECURITY ADMINISTRATION -- DISCLOSING INFORMATION

Headnote:[2]

In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135. That Act provides that the Transportation Security Administration (" TSA" ) shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security if the Under Secretary decides that disclosing the information would be detrimental to the security of transportation. 49 U.S.C.S. § 114(r)(1)(C). Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of what it called " sensitive security information." 67 Fed. Reg. 8351 (2002). The regulations described 18 categories of sensitive security information, including specific 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 C.F.R. § 1520.7(j) (2002). Sensitive security information is not classified, so the TSA can share it with individuals who do not have a security clearance, such as airport employees. (Roberts, Ch. J., joined by Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ.)

PUBLIC OFFICERS § 5

WHISTLEBLOWER PROTECTION

Headnote:[3]

See 5 U.S.C.S. § 2302(b)(8)(A), which provides, in part, that a federal agency may not take:

" a personnel action with respect to any employee or applicant for employment because of

" (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences

" (i) any violation of any law, rule, or regulation, or

" (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

" if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs."

STATUTES § 176

WHISTLEBLOWER PROTECTION -- OMITTED LANGUAGE

Headnote:[4]

Throughout 5 U.S.C.S. § 2302, Congress repeatedly used the phrase " law, rule, or regulation." For example, § 2302(b)(1)(E) prohibits a federal agency from discriminating against an employee " on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation." For another example, § 2302(b)(6) prohibits an agency from granting " any preference or advantage not authorized by law, rule, or regulation." And for a third example, § 2302(b)(9)(A) prohibits an agency from retaliating against an employee for " the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation." In contrast, Congress did not use the phrase " law, rule, or regulation" in § 2302(b)(8)(A); it used the word " law" standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Thus, Congress's choice to say " specifically prohibited by law" rather than " specifically prohibited by law, rule, or regulation" suggests that Congress meant to exclude rules and regulations. (Roberts, Ch. J., joined by Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ.)

[190 L.Ed.2d 773]

STATUTES § 176

WHISTLEBLOWER PROTECTION -- OMITTED LANGUAGE

Headnote:[5]

The interpretive canon that Congress acts intentionally when it omits language included elsewhere applies with particular force to interpreting 5 U.S.C.S. § 2302(b)(8)(A) for two reasons. First, Congress used " law" and " law, rule, or regulation" in close proximity--indeed, in the same sentence. 5 U.S.C.S. § 2302(b)(8)(A) (protecting the disclosure of any violation of any law, rule, or regulation " if such disclosure is not specifically prohibited by law" ). Second, Congress used the broader phrase " law, rule, or regulation" repeatedly--nine times in § 2302 alone. 5 U.S.C.S. § 2302(a)(2)(D)(i), (b)(1)(E), (b)(6), (b)(8)(A)(i), (b)(8)(B)(i), (b)(9)(A), (b)(12), (b)(13), (d)(5). Those two aspects of the whistleblower statute make Congress's choice to use the narrower word " law" seem quite deliberate. (Roberts, Ch. J., joined by Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ.)

STATUTES § 172

WHISTLEBLOWER PROTECTION -- LAW -- RESTRICTING MEANING

Headnote:[6]

A broad interpretation of the word " law" could defeat the purpose of the whistleblower statute. If " law" included agency rules and regulations, then an agency could insulate itself from the scope of 5 U.S.C.S. § 2302(b)(8)(A) merely by promulgating a regulation that " specifically prohibited" whistleblowing. But Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word " law." (Roberts, Ch. J., joined by Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ.)

STATUTES § 112

WHISTLEBLOWER PROTECTION -- PROXIMITY OF WORDS

Headnote:[7]

Congress's use of the word " law," in close connection with the phrase " law, rule, or regulation," in 5 U.S.C.S. § 2302(b)(8)(A) provides the necessary " clear showing" that " law" does not include regulations. Had Congress wanted to draw that distinction, there were far easier and clearer ways to do so. For example, at the time Congress passed § 2302(b)(8)(A), another federal statute defined the words " regulatory order" to include a " rule or regulation, if it has the force and effect of law." 7 U.S.C.S. § 450c(a). Likewise, another federal statute defined the words " State law" to include " all laws, decisions, rules, regulations, or other State action having the effect of law." 29 U.S.C.S. § 1144(c)(1). As those examples show, Congress knew how to distinguish between regulations that had the force and effect of law and those that did not, but chose not to do so in § 2302(b)(8)(A). (Roberts, Ch. J., joined by Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ.)

PUBLIC OFFICERS § 5STATUTES § 176

WHISTLEBLOWER PROTECTION -- OMITTED LANGUAGE

Headnote:[8]

When Congress used the phrase " specifically prohibited by law" instead of " specifically prohibited by law, rule, or regulation" in 5 U.S.C.S. § 2302(b)(8)(A), it meant to exclude rules and regulations. The United States Supreme Court therefore holds that the Transportation Security Administration's regulations do not qualify as " law" for purposes of § 2302(b)(8)(A). (Roberts, Ch. J., joined by Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ.)

[190 L.Ed.2d 774]

AVIATION ...


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