The United States Supreme Court has held that a federal air marshal engaged in protected whistleblowing activity when he informed the media of a Transportation Security Administration (TSA) decision to remove air marshals from certain long-distance flights to cut costs.  The disclosure came after the TSA informed all air marshals of a potential hijacking plot by members of al Qaeda that focused on U.S. passenger flights.  Several days after hearing of this plot, the federal air marshal learned that to cut costs, the TSA had cancelled overnight missions from Las Vegas for a period of time.  Believing the cancellations to be both dangerous and illegal, he contacted a reporter and disclosed them.  The disclosure led to news coverage and Congressional criticism of the TSA's decision.  When the TSA eventually learned that the air marshal had made the disclosure, he was terminated for doing so in violation of TSA regulations on sensitive security information.

The employee challenged his termination before the Merit Systems Protection Board on the ground that his disclosure was covered by federal whistleblower law, which protects employees who disclose information revealing violations of law, rules or regulations, or a substantial and specific danger to public health or safety.  The Board disagreed, holding that his conduct did not qualify for whistleblower protection because his disclosure was "specifically prohibited by law" within the meaning of the whistleblower statute, identifying the TSA regulations that formed the basis for the agency's termination decision as the applicable law.  He appealed the decision to the Court of Appeals of the Federal Circuit, which vacated the Board's decision, concluding instead that the air marshal's disclosure was protected whistleblowing.  In so doing, the court reasoned that even where the air marshal's disclosures may have been prohibited by TSA regulation, the whistleblower protection exception for "disclosures specifically prohibited by law" would not apply to them.

The government further appealed to the United States Supreme Court, which affirmed the appellate court's decision.  In so doing, the Supreme Court focused its analysis on the meaning of the statutory phrase "specifically prohibited by law."  The Court interpreted the meaning of the term "law" as excluding regulations or rules.  The Court also dismissed the government's argument that the employee's disclosure was prohibited by a separate statutory provision that required the TSA to "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. § 114(r) (1) (C).  While the government argued that the air marshal's disclosures were exempted from protection under the whistleblower statute because they were specifically prohibited by the foregoing statutory language, the Supreme Court concluded that the language contains no prohibitions and merely authorizes an agency to prescribe regulations.  Finally, while the Court recognized that its decision to provide whistleblower protection to the air marshal and others like him could raise public safety risks regarding the release of sensitive information, it noted that the proper channels for addressing these issues is through Congress or the President, as opposed to the judiciary.  Department of Homeland Security v. MacLean