In 2002, Congress enacted the
Homeland Security Act. That act provides that the
Transportation Security Administration (TSA) "shall prescribe regulations prohibiting the disclosure of information... if the Under Secretary decides that disclosur[e] would... be detrimental to the security of transportation." Around the same time, the TSA promulgated regulations prohibiting 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." In July 2003, the TSA briefed all federal
air marshals—including Robert J. MacLean—about a potential plot to
hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from
Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA's decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization. MacLean challenged his firing before the
Merit Systems Protection Board. He argued that his disclosure was whistleblowing activity under 5 U.S.C. §2302(b)(8)(A), which protects employees who disclose information that reveals "any violation of any law, rule, or regulation," or "a substantial and specific danger to public health or safety." The Board held that MacLean did not qualify for protection under that statute because his disclosure was "specifically prohibited by law"—namely, by the Homeland Security Act. The
Court of Appeals for the Federal Circuit vacated the Board's decision, holding that Section 114(r)(1) was not a prohibition within the meaning of the statute protecting whistleblowers. ==Opinion of the court==