United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute
Department of Homeland Security v MacLean, USSC #13-984
A federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain flights.
He was subsequently dismissed from his position for disclosing sensitive security information without authorization in violation of TSA regulations, which action was sustained by the Merit Systems Protection Board. The Board found that MacLean was not entitled to whistle blower protection for the disclosures he made, finding that such statements were specifically prohibited by TSA's regulation.
The TSA regulation at issue, 67 Fed. Reg. 8351, prohibited the unauthorized disclosure of “sensitive security information” which included "[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."
The USCA, Federal Circuit, vacated the Board’s determination.
The Supreme Court affirmed the Federal Circuit’s ruling, explaining that Congress had used phrase "specifically prohibited by law" rather than a more general phrase such as “law, rule or regulation” in creating exceptions to the protections of the federal whistle blower statute [5 U.S.C. 2302(b)(8)(A)].
TSA's regulations, said the court, do not qualify as "law" for the purposes of 5 USC 2302(b)(8)(A) and thus such regulations do not satisfy the requirement that the provision constitute an “exception prohibited by law.”
For the purposes of “Whistle Law” protection, New York courts have distinguished between disclosures concerning of matters of public interest, which are subject to such protection and disclosures concerning matters of a personal nature or personal interest, which disclosures are not protected by the State’s Whistle Blower laws [Civil Service Law §75-b and Labor Law §740.(2)] or New York City’s Administrative Code §12-113.
The MacLean decision is posted on the Internet at: