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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–894
_________________
DEPARTMENT OF HOMELAND SECURITY, PETITIONER
v. ROBERT J.
MacLEAN
on writ of certiorari to the united states court of appeals for
the federal circuit
[January 21, 2015]
Chief Justice Roberts delivered the opinion of the Court.
Federal law generally provides whistleblower protections to an
employee who discloses information revealing
“any violation of any law, rule, or
regulation,†or “a substantial and
specific danger to public health or safety.â€5
U. S. C. §2302(b)(8)(A). An
exception exists, however, for disclosures that are
“specifically prohibited by law.â€
Ibid. Here, a federal air marshal publicly disclosed that
the Transportation Security Administration (TSA) had de-cided to
cut costs by removing air marshals from certain long-distance
flights. The question presented is whether that disclosure was
“specifically prohibited by
law.â€
I
A
In 2002, Congress enacted the Homeland Security
Act,116Stat.2135. As relevant here, that Act provides that the TSA
“shall 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.â€49 U. S. C.
§114(r)(1)(C).
Around the same time, the TSA promulgated regulations
prohibiting the unauthorized disclosure of what it called
“sensitive security information.â€
See 67 Fed. Reg. 8351 (2002). The regulations described 18
categories of sensitive security information, including
“[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.â€
49 CFR §1520.7(j) (2002). Sensitive security
information is not classified, so the TSA can share it with
individuals who do not have a security clearance, such as airport
employees. Compare Exec. Order 13526, §4.1, 3 CFR 298,
314–315 (2009 Comp.), with 49 CFR
§1520.11(c) (2013).
B
Robert J. MacLean became a federal air marshal for the TSA in
2001. In that role, MacLean was assigned to protect passenger
flights from potential hijackings. See49
U. S. C. §44917(a).
On July 26, 2003, the Department of Homeland Security (DHS)
issued a confidential advisory about a potential hijacking plot.
The advisory said that members of the terrorist group al Qaeda were
planning to attack passenger flights, and that they
“considered suicide hijackings and bombings as
the most promising methods to destroy aircraft in flight, as well
as to strike ground targets.†App. 16. The advisory
identified a number of potential targets, including the United
Kingdom, Italy, Australia, and the east coast of the United States.
Finally, the advisory warned that at least one of the attacks
“could be executed by the end of the summer
2003.â€
Ibid.
The TSA soon summoned all air marshals (including MacLean) for
face-to-face briefings about the hijacking plot. During
MacLean’s briefing, a TSA official told him that
the hijackers were planning to “smuggle weapons
in camera equipment or children’s toys through
foreign security,†and then “fly
into the United States . . . into an
airport that didn’t require them to be
screened.â€
Id., at 92. The hijackers would then
board U. S. flights, “overpower the
crew or the Air Marshals and . . . fly the
planes into East Coast targets.â€
Id., at 93.
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. He also believed that the cancellations were illegal,
given that federal law required the TSA to put an air marshal on
every flight that “present[s] high security
risks,â€49 U. S. C.
§44917(a)(2), and provided that
“nonstop, long distance flights, such as those
targeted on September 11, 2001, should be a priority,â€
§44917(b). See App. 95, 99, 101.
MacLean therefore asked a supervisor why the TSA had canceled
the missions. The supervisor responded that the TSA wanted
“to save money on hotel costs because there was
no more money in the budget.â€
Id., at 95.
MacLean also called the DHS Inspector General’s
Office to report the cancellations. But a special agent in that
office told him there was “nothing that could be
done.â€
Id., at 97.
Unwilling to accept those responses, MacLean contacted an MSNBC
reporter and told him about the canceled missions. In turn, the
reporter published a story about the TSA’s
decision, titled “Air Marshals pulled from key
flights.â€
Id., at 36. The story reported that
air marshals would “no longer be covering
cross-country or international flights†because the
agency did not want them “to incur the expense
of staying overnight in hotels.â€
Ibid. The story
also reported that the cancellations were
“particularly disturbing to someâ€
because they “coincide[d] with anew high-level
hijacking threat issued by the Department of Homeland
Security.â€
Id., at 37.
After MSNBC published the story, several Members of Congress
criticized the cancellations. Within 24 hours, the TSA reversed its
decision and put air marshals back on the flights.
Id., at
50.
At first, the TSA did not know that MacLean was the source of
the disclosure. In September 2004, however, MacLean appeared on NBC
Nightly News to criticize the TSA’s dress code
for air marshals, which he believed made them too easy to identify.
Although MacLean appeared in disguise, several co-workers
recognized his voice, and the TSA began investigating the
appearance. During that investigation, MacLean admitted that he had
disclosed the text message back in 2003. Consequently, in April
2006, the TSA fired MacLean for disclosing sensitive security
information without authorization.
MacLean challenged his firing before the Merit Systems
Protection Board, arguing in relevant part that his disclosure was
protected whistleblowing activity under5
U. S. C. §2302(b)(8)(A). The
Board held that MacLean did not qualify for protection under that
statute, however, because his disclosure was
“specifically prohibited by law.â€
116 MSPR 562, 569–572 (2011).
The Court of Appeals for the Federal Circuit vacated the
Board’s decision. 714 F. 3d 1301
(2013). The parties had agreed that, in order for
MacLean’s disclosure to be
“specifically prohibited
by
law,†it must have been
“prohibited by a statute rather than by a
regulation.â€
Id., at 1308 (emphasis added).
Thus, the issue before the court was whether the statute
authorizing the TSA’s
regulations—now codified at49
U. S. C.
§114(r)(1)—“specifically
prohibited†MacLean’s disclosure.
714 F. 3d, at 1308.[
1]*
The court first held that Section 114(r)(1) was not a
prohibition. The statute did “not expressly
prohibit employee disclosures,†the court explained,
but instead empowered the TSA to “prescribe
regulations prohibiting disclosure[s]†if the TSA
decided that disclosing the information would harm public safety.
Id., at 1309. The court therefore concluded that
MacLean’s disclosure was prohibited by a
regulation, which the parties had agreed could not be a
“law†under Section 2302(b)(8)(A).
Ibid.
The court then held that, even if Section 114(r)(1) were a
prohibition, it was not “sufficiently
specific.â€
Ibid. The court explained that a law
is sufficiently specific only if it “requires
that matters be withheld from the public as to leave no discretion
on the issue, or . . . establishes
particular criteria for withholding or refers to particular types
of matters to be withheld.â€
Ibid. (quoting
S. Rep. No. 95–969 (1978)). And
Section 114(r)(1) did not meet that test because it
“provide[d] only general criteria for
withholding information and [gave] some discretion to the [TSA] to
fashion regulations for prohibiting disclosure.†714
F. 3d, at 1309. The court accordingly vacated the
Board’s decision and remanded for a
determination of whether MacLean’s disclosure
met the other requirements under Section 2302(b)(8)(A).
Id.,
at 1310–1311.
We granted certiorari. 572 U. S. ___ (2014).
II
Section 2302(b)(8) provides, in relevant part, that a federal
agency may not take
“a personnel action with respect to any
employee or applicant for employment because of
“(A) any disclosure of information by an
employee or applicant which the employee or applicant reasonably
believes evidences
“(i) any violation of any law, rule, or
regulation, or
“(ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger
to public health or safety,
“if such disclosure is not specifically
prohibited by law and if such information is not specifically
required by Executive order to be kept secret in the interest of
national defense or the conduct of foreign
affairs.â€
The Government argues that this whistleblower statute does not
protect MacLean because his disclosure regarding the canceled
missions was “specifically prohibited by
law†in two ways. First, the Government argues that the
disclosure was specifically prohibited by the
TSA’s regulations on sensitive security
information: 49 CFR
§§1520.5(a)–(b),
1520.7(j) (2003). Second, the Government argues that the disclosure
was specifically prohibited by49 U. S. C.
§114(r)(1), which authorized the TSA to pro-mulgate
those regulations. We address each argument in turn.
A
1
In 2003, the TSA’s regulations prohibited the
disclosure of “[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.†49 CFR §1520.7(j). MacLean
does not dispute before this Court that the
TSA’s regulations prohibited his disclosure
regarding the canceled missions. Thus, the question here is whether
a disclosure that is specifically prohibited by regulation is also
“specifically prohibited
by
law†under Section 2302(b)(8)(A). (Emphasis
added.)
The answer is no. Throughout Section 2302, Congress repeatedly
used the phrase “law, rule, or
regulation.†For example, Section 2302(b)(1)(E)
prohibits a federal agency from discriminating against an employee
“on the basis of marital status or political
affiliation, as prohibited under any law, rule, or
regulation.†For another example, Section 2302(b)(6)
prohibits an agency from “grant[ing] any
preference or advantage not authorized by law, rule, or
regulation.†And for a third example, Section
2302(b)(9)(A) prohibits an agency from retaliating against an
employee for “the exercise of any appeal,
complaint, or grievance right granted by any law, rule, or
regulation.â€
In contrast, Congress did not use the phrase
“law, rule, or regulation†in the
statutory language at issue here; it used the word
“law†standing alone. That is
significant because Congress generally acts intentionally when it
uses particular language in one section of a statute but omits it
in another.
Russello v.
United States,464
U. S. 16,23 (1983). Thus, Congress’s
choice to say “specifically prohibited by
law†rather than “specifically
prohibited by law, rule, or regulation†suggests that
Congress meant to exclude rules and regulations.
The interpretive canon that Congress acts intentionally when it
omits language included elsewhere applies with particular force
here for two reasons. First, Congress used
“law†and “law,
rule, or regulation†in close
proximity—indeed, in the same sentence.
§2302(b)(8)(A) (protecting the disclosure of
“any violation of any law, rule, or regulation
. . . if such disclosure is not
specifically prohibited by lawâ€). Second, Congress used
the broader phrase “law, rule, or
regulation†repeatedly—nine times in
Section 2302 alone. See §§2302(a)(2)(D)(i),
(b)(1)(E), (b)(6), (b)(8)(A)(i), (b)(8)(B)(i), (b)(9)(A), (b)(12),
(b)(13), (d)(5). Those two aspects of the whistleblower statute
make Con-gress’s choice to use the narrower word
“law†seem quite deliberate.
We drew the same inference in
Department of Treasury, IRS
v.
FLRA,494 U. S. 922 (1990). There, the
Government argued that the word
“laws†in one section of the Civil
Service Reform Act of 1978 meant the same thing as the phrase
“law, rule, or regulation†in
another section of the Act.
Id., at 931. We rejected that
argument as “sim-ply contrary to any reasonable
interpretation of the text.â€
Id., at 932.
Indeed, we held that a statute that referred to
“laws†in one section and
“law, rule, or regulation†in
another “cannot, unless we abandon all pretense
at precise communication, be deemed to mean the same thing in both
places.â€
Ibid. That inference is even more
compelling here, because the statute refers to
“law†and “law,
rule, or regulation†in the same sentence, rather than
several sections apart.
Another part of the statutory text points the same way. After
creating an exception for disclosures
“specifically prohibited by law,â€
Section 2302(b)(8)(A) goes on to create a second exception for
information “specifically required by Executive
order to be kept secret in the interest of national defense or the
conduct of foreign affairs.†This exception is limited
to action taken directly by the President. That suggests that the
word “law†in the only other
exception is limited to actions by
Congress—after all, it would be unusual for the
first exception to include action taken by executive agencies, when
the second exception requires action by the President himself.
In addition, a broad interpretation of the word
“law†could defeat the purpose of
the whistleblower statute. If “lawâ€
included agency rules and regulations, then an agency could
insulate itself from the scope of Section 2302(b)(8)(A) merely by
promulgating a regulation that “specifically
prohibited†whistleblowing. But Congress passed the
whistleblower statute precisely because it did not trust agencies
to regulate whistleblowers within their ranks. Thus, it is unlikely
that Congress meant to include rules and regulations within the
word “law.â€
2
The Government admits that some regulations fall outside the
word “law†as used in Section
2302(b)(8)(A). But, the Government says, that does not mean that
all regulations are excluded. The Government suggests two
interpretations that would distinguish
“law†from “law,
rule, or regulation,†but would still allow the word
“lawâ€to subsume the
TSA’s regulations on sensitive security
information.
First, the Government argues that the word
“law†includes all regulations that
have the “force and effect of lawâ€
(
i.e., legislative regulations), while excluding those that
do not (
e.g., interpretive rules). Brief for Petitioner
19–22. The Government bases this argument on our
decision in
Chrysler Corp. v.
Brown,441
U. S. 281 (1979). There, we held that legislative
regulations generally fall within the meaning of the word
“law,†and that it would take a
“clear showing of contrary legislative
intent†before we concluded otherwise.
Id., at
295–296. Thus, because the
TSA’s regulations have the force and effect of
law, the Government says that they should qualify as
“law†under the statute.
The Government’s description of
Chrysler is accurate enough. But
Congress’s use of the word
“law,†in close connection with the
phrase “law, rule, or regulation,â€
provides the necessary “clear
showing†that “law†does
not include regulations. Indeed, using
“law†and “law,
rule, or regulation†in the same sentence would be a
very obscure way of drawing the Government’s
nuanced distinction between different types of regulations. Had
Congress wanted to draw that distinction, there were far easier and
clearer ways to do so. For example, at the time Congress passed
Section 2302(b)(8)(A), another federal statute defined the words
“regulatory order†to include a
“rule or regulation, if it has the force and
effect of law.â€7 U. S. C.
§450c(a) (1976 ed.). Likewise, another federal statute
defined the words “State law†to
include “all laws, decisions, rules,
regulations, or other State action having the effect of
law.â€29 U. S. C.
§1144(c)(1) (1976 ed.). As those examples show,
Congress knew how to distinguish between regulations that had the
force and effect of law and those that did not, but chose not to do
so in Section 2302(b)(8)(A).
Second, the Government argues that the word
“law†includes at least those
regulations that were “promulgated pursuant to
an express congressional directive.†Brief for
Petitioner 21. Outside of this case, however, the Government was
unable to find a single example of the word
“law†being used in that way. Not a
single dictionary definition, not a single statute, not a single
case. The Government’s interpretation happens to
fit this case precisely, but it needs more than that to recommend
it.
Although the Government argues here that the word
“law†includes rules and
regulations, it definitively re-jected that argument in the Court
of Appeals. For example, the Government’s brief
accepted that the word “lawâ€meant
“legislative enactment,†and said
that the “only dispute†was
whether49 U. S. C. §114(r)(1)
“serve[d] as that legislative
enactment.†Brief for Respondent in No.
11–3231 (CA Fed.), pp. 46–47.
Then, at oral argument, a judge asked the
Government’s attorney the following question:
“I thought I understood your brief to concede
that [the word “lawâ€]
can’t be a rule or regulation, it means statute.
Am I wrong?†The Government’s
attorney responded: “You’re
not wrong your honor. I’ll be as clear as I can.
‘Specifically prohibited by
law’ here means statute.†Oral Arg.
Audio in No. 11–3231, at
22:42–23:03; see also
id., at
29:57–30:03 (“Now, as
we’ve been discussing here,
we’re not saying here that [the word
“lawâ€] needs to encompass
regulations. We’re saying
statute.â€). Those concessions reinforce our conclusion
that the Government’s proposed interpretations
are unpersuasive.
In sum, when Congress used the phrase
“specifically prohibited by lawâ€
instead of “specifically prohibited by law,
rule, or regulation,†it meant to exclude rules and
regulations. We therefore hold that the TSA’s
regulations do not qualify as “lawâ€
for purposes of Section 2302(b)(8)(A).
B
We next consider whether MacLean’s disclosure
regarding the canceled missions was
“specifically prohibited†by49
U. S. C. §114(r)(1) itself. As
relevant here, that statute provides that the TSA
“shall 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.†§114(r)(1)(C).
This statute does not prohibit anything. On the con-trary, it
authorizes something—it authorizes the
Under Secretary to “prescribe
regulations.†Thus, by its terms Section 114(r)(1) did
not prohibit the disclosure at issue here.
The Government responds that Section 114(r)(1) did prohibit
MacLean’s disclosure by imposing a
“legislative mandate†on the TSA to
promulgate regulations to that effect. See Brief for Petitioner 28,
33; see also
post, at 2–3 (Sotomayor, J.,
dissenting). But the Government pushes the statute too far. Section
114(r)(1) says that the TSA shall prohibit disclosures only
“
if the Under Secretary decides that
disclosing the information would . . . be
detrimental to the security of transportation.â€
§114(r)(1)(C) (emphasis added). That language affords
substantial discretion to the TSA in deciding whether to prohibit
any particular disclosure.
The dissent tries to downplay the scope of that discretion,
viewing it as the almost ministerial task of
“
identifying whether a particular piece
of information falls within the scope of
Congress’ command.â€
Post, at
3. But determining which documents meet the statutory standard of
“detrimental to the security of
transportation†requires the exercise of considerable
judgment. For example, the Government says that Section 114(r)(1)
requires the Under Secretary to prohibit disclosures like
MacLean’s. The Government also says, however,
that the statute does not require the Under Secretary to prohibit
an employee from disclosing that “federal air
marshals will be absent from important flights, but declining to
specify which flights.†Reply Brief 23. That
fine-grained distinction comes not from Section 114(r)(1) itself,
but from the Under Secretary’s exercise of
discretion. It is the TSA’s
regulations—not the
statute—that prohibited
MacLean’s disclosure. And as the dissent agrees,
a regulation does not count as “lawâ€
under the whistleblower statute. See
post, at 1.
The Government insists, however, that this grant of discretion
does not make Section 114(r)(1) any less of a prohibition. In
support, the Government relies on
Administrator, FAA v.
Robertson,422 U. S. 255 (1975). That case
involved the Freedom of Information Act (FOIA), which requires
federal agencies to disclose information upon request unless, among
other things, the information is “specifically
exempted from disclosure by statute.â€5
U. S. C. §552(b)(3). In
Robertson, we held that the Federal Aviation Act of 1958 was
one such statute, because it gave the Federal Aviation
Administration (FAA) “a broad degree of
discretion†in deciding whether to disclose or withhold
information. 422 U. S., at 266.
The Government tries to analogize that case to this one. In
Robertson, the Government says, the FAA’s
discretion whether to disclose information did not preclude a
finding that the information was “specifically
exempted†from disclosure by statute. So too here, the
Government says, the TSA’s discretion whether to
prohibit disclosure of information does not preclude a finding that
the information is “specifically
prohibited†from disclosure by Section 114(r)(1). See
Brief for Petitioner 30.
This analogy fails. FOIA and Section 2302(b)(8)(A) differ in an
important way: The provision of FOIA at issue involves information
that is “
exempted†from
disclosure, while Section 2302(b)(8)(A) involves information that
is “
prohibited†from
disclosure.
A statute that exempts information from mandatory disclosure may
nonetheless give the agency discretion to release that exempt
information to the public. In such a case, the
agency’s exercise of discretion has no effect on
whether the information is “exempted from
disclosure
by statuteâ€â€”it
remains exempt whatever the agency chooses to do.
The situation is different when it comes to a statute giving an
agency discretion to prohibit the disclosure of information. The
information is not prohibited from disclosure
by statute
regardless of what the agency does. Itis the
agency’s exercise of discretion that determines
whether there is a prohibition at all. Thus, when Section 114(r)(1)
gave the TSA the discretion to prohibit the disclosure of
information, the statute did not create a
prohibition—it gave the TSA the power to create
one. And because Section 114(r)(1) did not create a prohibition,
MacLean’s disclosure was not
“prohibited
by law†under
Section 2302(b)(8)(A), but only by a regulation issued in the
TSA’s discretion.
In any event,
Robertson was a case about FOIA, not
Section 2302, and our analysis there depended on two FOIA-specific
factors that are not present here. First, we examined the
legislative history of FOIA and determined that Congress did not
intend that statute to affect laws like the Federal Aviation Act.
422 U. S., at 263–265. In
particular, we noted that the Civil Aeronautics Board had expressed
its view during congressional hearings that the Federal Aviation
Act qualified as an exempting statute under FOIA, and that
“no question was raised or challenge
made†to the agency’s view.
Id., at 264–265. But that legislative
history can have no effect on our analysis of Section
2302(b)(8)(A).
Second, we said that the Federal Aviation Act could fail to
qualify as an exempting statute only if we read FOIA
“as repealing by implication all existing
statutes which restrict public access to specific Government
records.â€
Id., at 265 (internal quotation marks
omitted). Then, relying on the presumption that
“repeals by implication are
disfavored,†we rejected that interpretation of FOIA.
But the presumption against implied repeals has no relevance here.
Saying that Section 114(r)(1) is not a prohibition under the
whistleblower statute is not the same as saying that the
whistleblower statute implicitly repealed Section 114(r)(1). On the
contrary, Section 114(r)(1) remains in force by allowing the TSA to
deny FOIA requests and prohibit employee disclosures that do not
qualify for whistleblower protection under Section
2302(b)(8)(A).
Ultimately, FOIA and Section 2302(b)(8)(A) are different
statutes—they have different language, different
histories, and were enacted in different contexts. Our
interpretation of one, therefore, has no impact whatsoever on our
interpretation of the other.
III
Finally, the Government warns that providing whistleblower
protection to individuals like MacLean would
“gravely endanger public safety.â€
Brief for Petitioner 38. That protection, the Government argues,
would make the confidentiality of sensitive security information
depend on the idiosyncratic judgment of each of the
TSA’s 60,000 employees.
Id., at 37. And
those employees will “most likely lack access to
all of the information that led the TSA to make particular security
decisions.â€
Id., at 38. Thus, the Government
says, we should conclude that Congress did not intend for Section
2302(b)(8)(A) to cover disclosures like
MacLean’s.
Those concerns are legitimate. But they are concerns that must
be addressed by Congress or the President, rather than by this
Court. Congress could, for example, amend Section 114(r)(1) so that
the TSA’s prohibitions on disclosure override
the whistleblower protections in Section
2302(b)(8)(A)—just as those prohibitions
currently override FOIA. See §114(r)(1) (authorizing
the TSA to prohibit disclosures
“[n]otwithstanding section 552 of title
5â€); see also10 U. S. C.
§2640(h) (“the Secretary of Defense
may (notwithstanding any other provision of law) withhold from
public disclosure safety-related information that is provided to
the Secretary voluntarily by an air carrier for the purposes of
this sectionâ€). Congress could also exempt the TSA from
the requirements of Section 2302(b)(8)(A) entirely, as Congress has
already done for the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the National
Geospatial-Intelligence Agency, the National Security Agency, the
Office of the Director of National Intelligence, and the National
Reconnaissance Office. See5 U. S. C.
§2302(a)(2)(C)(ii)(I).
Likewise, the President could prohibit the disclosure of
sensitive security information by Executive order. Indeed, the
Government suggested at oral argument that the President could
“entirely duplicate†the regulations
that the TSA has issued under Section 114(r)(1). Tr. of Oral Arg.
16–20. Such an action would undoubtedly create
an exception to the whistleblower protections found in Section
2302(b)(8)(A).
Although Congress and the President each has the power to
address the Government’s concerns, neither has
done so. It is not our role to do so for them.
The judgment of the United States Court of Appeals for the
Federal Circuit is
Affirmed.