Supreme Court rules for TSA whistle-blower in Orange County

The U.S. Supreme Court building is seen in this file photo from 2012.
The U.S. Supreme Court building is seen in this file photo from 2012.
(Karen Bleier / AFP/Getty Images)

The Supreme Court extended whistle-blower protection Wednesday to an Orange County man who had disclosed that the government was about to remove armed air marshals from overnight flights to save money on hotels.

In a 7-2 decision, the high court strengthened the shield for federal employees and said Congress wanted to protect those who step forward to reveal dangerous lapses within agencies.

In 2006, Robert J. MacLean was fired from his job as an air marshal after officials of the Transportation Security Administration learned that he was the source of a TV news report that revealed the planned cutback. They said he had disclosed sensitive security information.


The news report also embarrassed the agency and prompted it to reverse course. Within 24 hours of the disclosure, members of Congress complained, leading the TSA to announce it would not remove the air marshals from the overnight flights.

Since then, MacLean has been appealing his firing as a federal employee under a law that extends protection to employees who reveal violations of laws and regulations as well as “gross mismanagement and abuse of authority.”

MacLean won a preliminary ruling from a federal appeals court panel, but the Department of Homeland Security appealed to the Supreme Court. Its lawyers argued the agency had a regulation forbidding disclosures involving “aviation security measures.”

But Chief Justice John G. Roberts Jr. said this regulation did not have the force of law. He also said MacLean was just the kind of whistle-blower whom Congress meant to shield, noting he had revealed crucial information that prompted the agency to change course.

Wednesday’s ruling in DHS vs. MacLean is a major win for the former air marshal, but will not immediately lead to his reinstatement. He must now take his case to the Merit Systems Protection Board to argue that as a whistle-blower, he should have not have been fired.

MacLean, who now works in residual construction management in south Orange County, said Wednesday he was “very honored and grateful that the Supreme Court decided the case. I’ve always believed with the information that I had, it was not illegal to do what I did. Violating an agency rule or regulation does not trump the federal whistle-blower protections laws.”


Justices Sonia Sotomayor and Anthony Kennedy dissented. Sotomayor said the court had “left important decisions regarding the disclosure of critical information completely to the whims of individual employees.”

The opening of Wednesday’s court session was disrupted for about a minute when several protesters stood and shouted. They were there apparently to mark the fifth anniversary of the court’s Citizens United decision, which lifted limits on political spending by corporations, unions and others.

After a pause, the chief justice broke the tension, joking: “In our second order of business…”

Staff writer Dan Weikel contributed to this report.