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Most U.S. Supreme Court Justices Side with Fired Air Marshall who says he is Protected Under Whistleblower Law

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The fate of an ex-air marshal who claims he was trying to protect the public from a potential terrorist attack is in the hands of the United States Supreme Court.

Robert J. MacLean says he received a briefing in 2003 concerning a terrorist threat affecting long-distance flights. The Transportation Security Administration (TSA) contacted MacLean two days later informing him that the agency was canceling assignments requiring an overnight stay in an effort to cut costs. Fearing the move could put public safety at risk, MacLean complained to his superiors. When his concerns went ignored, he contacted a reporter for MSNBC. The resulting media attention quickly led to a reversal of the travel policy, according to The New York Times (Times.)

MacLean was identified by the government as the source of the story and promptly fired for disclosing the information without authorization. The former air marshal challenged his dismissal under the Whistleblower Protection Act (WPA), which is intended to protect federal workers from retaliation if they reveal “a substantial and specific danger to public health or safety,” the Times reported.

The whistle-blower law has an exception for disclosures “specifically prohibited by law.”  Now the Supreme Court justices must decide whether a Homeland Security regulation qualifies as the sort of exception that Congress was referring to in the whistleblower law. Ian H. Gershengorn, a deputy solicitor general, faced a barrage of aggressive questions from most of the justices. Some justices wanted clarification about how transportation workers could differentiate between what information is considered too sensitive to be disclosed, according to the Times.

One of MacLean’s lawyers said his client was exactly the type of worker the whistleblower law was designed to protect and that MacLean had acted quickly and responsibly “in order to save something that otherwise would have been detrimental to national security.” Justice Antonin Scalia replied, “And he was successful.” Justice Sonia Sotomayor told MacLean’s attorney that the case seemed to involve a compelling example of a worthwhile disclosure, adding that “The facts are very much in your favor,” the Times reported

The majority of the justices seem to be on MacLean’s side in the case, but Justice Samuel A. Alito Jr. was skeptical that MacLean would have been protected under the whistleblower law had he disclosed the information to “a reporter working for a foreign state-controlled news agency.” Justice Scalia responded that that would not count as whistleblowing. “Don’t you think it’s implicit in that he’s disclosing it to somebody who could remedy the problem as opposed to an enemy?” he asked. MacLean’s lawyer said the real issue was how hard it was to gain protection under the whistleblower law, adding that the problem is not that there are too many whistleblowers, but rather, too few, according to the Times. disclaimer: This article: Most U.S. Supreme Court Justices Side with Fired Air Marshall who says he is Protected Under Whistleblower Law was posted on Friday, November 7th, 2014 at 3:49 pm at and is filed under Employment Lawsuits, Other Lawsuits.

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