Robert MacLean was fired as a U.S. air marshal after leaking information about the armed, undercover officers. / Lenny Ignelzi, AP
The Supreme Court agreed Monday to hear a case from a former air marshal who argued that he was fired for alerting reporters that armed, undercover marshals were being pulled from some flights.
Robert MacLean was fired in 2006 after telling reporters in 2003 that the Transportation Security Administration was temporarily suspending having air marshals aboard Las Vegas flights.
A personnel board upheld the firing. But the U.S. Court of Appeals for the Federal Circuit overturned the board's decision in April 2013 and ordered the board to reconsider his dismissal.
The question before the Supreme Court boils down to whether TSA's regulations against revealing secret information outweigh a federal whistle-blower protection law aimed at protecting workers who disclose agency actions representing "a substantial and specific danger to public health or safety."
By accepting the case, the Supreme Court will hear arguments before the end of the year, with a decision expected by June 2015.
The incident that sparked the case came after MacLean was briefed about a "potential plot to hijack U.S. airliners" in July 2003 and then received a text message from the TSA stating that the agency wouldn't be deploying air marshals on overnight missions from Las Vegas until early August.
MacLean told his supervisor and the department's inspector general that the decision wasn't in the best interest of public safety, but they responded that nothing could be done.
MacLean then tipped off MSNBC, which posted a story about the dispute. After congressional criticism, the TSA dropped its plans.
But MacLean wasn't identified until years later, after he gave an interview to NBC to criticize the agency's dress code in a disguise that proved inadequate to mask his identity.
Neal Katyal, a former acting solicitor general representing MacLean, urged the Supreme Court to reject the case and let the appellate court's decision to stand because "air travel is safer, not less safe, because he came forward."
The government fired him based on a Department of Homeland Security regulations against revealing "any security contingency plan or information" or "specific details of aviation security measures include(ing) information concerning specific numbers of federal air marshals, deployments or missions, and the methods involved in such operations."
MacLean appealed his dismissal to the Merit Systems Protection Board, which ruled that he didn't deserve whistle-blower protection because his revelation was "specifically prohibited by law."
The government is pursuing the same argument at the Supreme Court, saying workers can't be allowed to overrule agency decisions by revealing secret information.
"In the course of its efforts to secure the nation's transportation network, the TSA necessarily develops and acquires a great deal of information, including information about security vulnerabilities, that has the potential to cause extreme harm if publicly disclosed," Solicitor General Donald Verrilli wrote in asking the Supreme Court to hear the case. "The (appellate court's) decision in this case, however, effectively permits individual federal employees to override the TSA's judgments about the dangers of public disclosure."
The appeals court sent MacLean's case back to the Merit Systems Protection Board after acknowledging he had "compromised flight safety" and "could have had catastrophic consequences," but concluding that his disclosure wasn't "specifically prohibited by law."
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