Department of Homeland Security v. MacLean (13-894)
argument 13-894Department of Homeland Security v. MacLean
Supreme Court of the United States
59 min
6 speakers
8 chapters
transcribed 6 days ago
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What statutory authority does §114‑R give TSA to restrict disclosures?
We'll hear argument first this morning in case thirteen eight ninety four, the
Department of Homeland Security versus Robert McLean.
Mr. Gershengorn?
Mr. Chief Justice, and may it please the court. In section one hundred fourteen R, Congress directed TSA to promulgate regulations prohibiting disclosures that would be detrimental to the security of transportation. The information covered in the TSA regulations ranges from a flight flight crew's plans for dealing with a hijacking attempt to vulnerabilities in airport security systems to the kind of de flight of federal air marshal deployment information at issue in this case. Under the Federal Circuit's construction of the whistleblower statutes, any one of TSA's 60,000 employees may override TSA's expert judgment and publicly disclose sensitive security information in that employee's possession based on that employee's reasonable belief about what public safety requires.
was um mid lane toll. that this qualified and as S S S I. Correct me if I'm wrong about this, but as I understood it he was fired and it wasn't until the case was before the M S P that a determination was made that this information qualified as An S what you call SSI.
Your Honor, I think that's not quite correct. Let me see if I can work it through. The information the information about federal air marshal deployment has been prohibited by regulation for more than a decade. It was prohibited expressly prior to nine eleven. It was in regulations that um were promulgated by TSA after nine eleven. But when was he first told? He was told that air marshal deployment information was SSI in the training and it's in the regs. He argued before the uh administrative judge that he was unaware that this information was SSI, and the administrative judge rejected that contention. That's at petitioner's appendix from one hundred A to one hundred and three A. What the administrative judge found was his testimony that he did not know this was SSI was inconsistent, nuanced, and evasive.
And the judge rejected that contention. What happens in the TSA final order, which I know your Honor is referring to, is that TSA creates a final order determining something is SSI, precisely so that it can be appealed to the Court of Appeals under forty nine USC forty six one ten. Which gives a uh person agreed by a TSA order 60 days to appeal something to the Court of Appeals. Mr. McLean did so, and the uh the Ninth Circuit rejected his argument that this was retroactive classification of TS of SSI. So I think as the case comes to this court, there really is no dispute that he understood that this was SSI.
Certainly is uh will in many cases be a close question. I was very surprised to see in your reply brief the recognition that the employee uh uh can, just to quote it, can tell the media that Federal air marshals will be absent from important flights, but declining to specify which flights. I think it would be very difficult to figure out what's SSI and what's not if given that kind of fine line. So could he say uh there will uh air marshals have been cut fifty percent from uh you know trans
continental flights. So Your Honor, there may be close cases. I again the administrative judge heard this contention from Mr. McLean and rejected it. Heard
what contention?
That he did not know that this was SSI, that the Federal Air Marshall deployment.
Can somebody say that the number of air marshals on transcontinental flights is being cut fifty percent?
Your Honor, I think that that without specifying uh I don't know the answer to that. I'm not uh someone at TSA who has a hospital. How is Mr
McLean supposed to know?
Because Mr. McLean Mr. McLean is um was trained to know was trained in SSI, received training on that um uh on that, and as I say, Your Honor, there is no dispute that he did know that this was SSI. Details of Federal Air Marshal
was confused. I I'd like Justice Ginsburg. I thought from the briefing that um That was done generally beforehand. that something would be distributed to people with a confidential
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Chapters
8 chapters
1
What statutory authority does §114‑R give TSA to restrict disclosures?
0:01–8:00
2
How did the administrative judge evaluate McLean’s claim of ignorance about SSI classification?
8:00–14:41
3
What is the significance of the “specifically prohibited by law” language in the Whistleblower Protection Act?
14:41–22:18
4
How do the Robertson and Sims precedents affect the interpretation of statutory prohibitions?
22:18–29:34
5
Can the President resolve SSI disclosure issues through an executive order?
29:34–36:56
6
What role do FOIA exemption‑3 and the “notwithstanding” clause play in this case?
36:56–44:32
7
How does the Chrysler three‑part test distinguish substantive regulations from internal agency rules?
44:32–51:43
8
What are the practical implications for whistleblowers and national security if the court finds the disclosure was specifically prohibited?
51:43–59:34