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Supreme Court considering TSA air marshal’s whistleblower claim

The wrongdoing uncovered by whistleblowers in the private sector often involves poor workplace conditions that put employees in danger. Government workers also sometimes blow the whistle on risk of harm, but their reports may involve danger to the public on a much larger scale.

In a case that recently came before the U.S. Supreme Court, a former air marshal says he was fired for alerting the public to a policy that he believed raised the risk of a terrorist attack on an airplane. He is challenging his termination under the federal Whistleblower Protection Act.

That law makes it illegal for the federal government to retaliate against an employee if he or she acts as a whistleblower to reveal “a substantial and specific danger to public health or safety” unless “specifically prohibited by law.”

The plaintiff was working as an air marshal in 2003. One day, he learned during a secret briefing about a possible terror threat that involved long-distance flights. Two days after that briefing, the Transportation Security Administration informed him via text message that it was cancelling any assignments that required the marshal to stay overnight somewhere.

Believing this would jeopardize his ability to prevent attacks, he complained to his superiors, but they refused to change its policy on cost-saving grounds. The marshal then went to a reporter for MSNBC, leading to news coverage and the TSA reversing the new policy.

This whistleblower case wound its way to the Supreme Court, and the justices recently heard oral arguments from attorneys for the parties. The TSA argued that the travel policy amounted to a regulation, and that some — but not all — regulations are covered by the “prohibited by law” exception to the Whistleblower Protection Act.

Many of the justices’ questions appeared to be sympathetic to the marshal’s case. For example, Justice Antonin Scalia asked whether the line between regulations that can be disclosed and those that cannot is too blurry under the TSA’s interpretation.

The Court’s ruling in this case could be very important when it comes to the rights of federal workers in national security fields to act as a whistleblower when they believe that security has been compromised.

Source: The New York Times, “Supreme Court Weighs Air Marshall’s Firing in Whistle-Blower Case,” Adam Liptak, Nov. 4, 2014