DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
In July 2003, the Transportation Security Administration (TSA) learned of a potential plot to hijack US planes and briefed the Federal Air Marshals accordingly. Not long after that briefing, the TSA notified the Marshals that all missions on flights from Las Vegas would be cancelled until August. Federal Air Marshal Robert J. MacLean became concerned that the TSA was not appropriately responding to the threat and creating a danger to the flying public, so he contacted an MSNBC reporter about the situation in an attempt to create a public controversy. MSNBC published an article, and several members of Congress joined in criticizing the decision to cancel the missions. That decision was then rescinded. In 2004, MacLean appeared disguised on NBC Night News, and some TSA employees recognized his voice. During the course of the investigation that followed, MacLean revealed his role in the 2003 MSNBC article. This contact was deemed to be an unauthorized disclosure of sensitive security information, and MacLean was removed from his position.
MacLean challenged the determination that he disclosed sensitive security information before the U.S. Court of Appeals for the Ninth Circuit. MacLean argued that the information about the cancellation of missions was not classified at the time he received it and could not be retroactively classified. The Court of Appeals held that the TSA had simply applied regulations already in force in 2003 to determine that information should fall under that classification. MacLean also challenged his removal before the Merit Systems Protection Board (Board) and argued that his actions were protected under the Whistleblower Protection Act (WPA). The Board determined that MacLean’s actions did not fall under the WPA because they were explicitly prohibited by law. The U.S. Court of Appeals for the Federal Circuit reversed the Board’s ruling and held that MacLean’s actions were not explicitly prohibited by law under the WPA.
Does the Whistleblower Protection Act bar an agency from taking enforcement action against an employee who intentionally discloses sensitive security information?
Legal provision: 5 U. S. C. §2302(b)(8)(A)
Yes. Chief Justice John Roberts, Jr. delivered the opinion for the 7-2 majority. The Court held that the language that Congress used in the exception within the Whistleblower Protection Act (WPA) that allows for prosecution of disclosures “specifically prohibited by law” is significant. Because Congress used the phrase, “law, rule, or regulation” in other places in the WPA, the fact that the exception only addressed disclosures “specifically prohibited by law” indicated that Congress did not intend for the exception to apply to disclosures prohibited by regulations such as the TSA regulation in question. The Court rejected the government’s argument that it should prevail because disclosures like MacLean’s were specifically prohibited and “gravely endanger[ed] public safety.” The Court noted that these concerns were legitimate but held that they must be addressed by Congress or the President.
Justice Sonia M. Sotomayor authored a dissenting opinion in which she argued that the Homeland Security Act explicitly prohibited the type of disclosure at issue. Therefore, Congress intended to prohibit these types of disclosures because it passed the Homeland Security Act, which required the TSA to enact regulations to prevent such disclosures. Justice Anthony M. Kennedy joined in this dissent.
ORAL ARGUMENT OF IAN H. GERSHENGORN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 13-894, the Department of Homeland Security v. Robert MacLean.
Ian H. Gershengorn: Mr. Chief Justice, and may it please the Court:
In Section 114(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 -- 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.
Justice Ruth Bader Ginsburg: At what point was -- was MacLean told that this qualified an -- as SSI?
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 MSPB that a determination was made that this information qualified as -- as what you call SSI.
Ian H. Gershengorn: Your Honor, I think that's not quite correct, and 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 9/11.
It was in regulations that were promulgated by TSA after 9/11.
Justice Ruth Bader Ginsburg: But when was he first told?
Ian H. Gershengorn: He was told that air marshal deployment information was SSI in the training, and it's in the regs.
He argued before the 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 100a to 103a.
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 49 U.S.C. 46110, which gives a person aggrieved by a -- a TSA order 60 days to appeal something to the court of appeals.
Mr. MacLean did so, and the -- 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.
Chief Justice John G. Roberts: But it -- it certainly is -- will, in many cases, be a close question.
I was very surprised to see in your reply brief the recognition that the employee 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.
Ian H. Gershengorn: So, Your Honor--
Chief Justice John G. Roberts: And could he say, there will -- air marshals have been cut 50 percent from, you know, transcontinental flights?
Ian H. Gershengorn: --So, Your Honor, there may be close cases.
Again, the administrative judge heard this contention from Mr. MacLean and rejected it.
As the case--
Chief Justice John G. Roberts: Heard what contention?
Ian H. Gershengorn: --That he did not know that this was SSI, that the Federal air marshal deployment--
Chief Justice John G. Roberts: Okay.
Well, what about my question?
Could somebody say that the number of air marshals on transcontinental flights has been cut 50 percent?
Ian H. Gershengorn: --Your Honor, I think that -- that without specifying -- I don't know the answer to that.
I'm not someone at TSA who has classification--
Chief Justice John G. Roberts: So how was Mr. MacLean supposed to know?
Ian H. Gershengorn: --Because Mr. MacLean -- Mr. MacLean is -- was trained to know, was trained in SSI, received training on that -- 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 deployment--
Justice Sonia Sotomayor: I'm a little confused.
Like Justice Ginsburg, I thought from the briefing that that was done generally beforehand, that something would be distributed to people with a confidential notice on it so that people would be--
Ian H. Gershengorn: --That would be marked SSI.
Justice Sonia Sotomayor: --that the -- that this was SSI.
But this particular information wasn't so designated before the release.
Ian H. Gershengorn: That's correct, Your Honor.
But the -- the -- there's no doubt the best practice is, is to mark information SSI.
But information is SSI--
Justice Sonia Sotomayor: You want it before it's going out.
Ian H. Gershengorn: --Correct.
But SSI can -- information can be SSI, whether or not it is marked -- whether it -- or not it is marked that way.
And, again, the regulations are -- are clear on this, that details of Federal air marshal deployment are covered as SSI, and this issue was litigated before the administrative judge.
Justice Anthony Kennedy: If there were no regulations, just the statutes on the books, at that point, are there any prohibitions on disclosure?
Or there can be no SSI without at least some regulation?
Ian H. Gershengorn: --That's correct, Your Honor.
But -- and so if I could turn to that, what the Federal Circuit held, the Federal Circuit held that the whistleblower protections extended to this information.
But properly read, 2302(b)(8)(A) squarely forecloses that result.
What that section does is exempt from whistleblower protection information that is specifically -- disclosure of which is specifically prohibited by law.
The Federal Circuit found no specific prohibition here, indeed, no law at all.
But under the SSI regime, disclosure was prohibited both by the statute that mandated nondisclosure regulations and by the nondisclosure regulations--
Justice Antonin Scalia: No, it wasn't prohibited by the statute until there were regulations, right?
Ian H. Gershengorn: --That's correct, Your Honor.
But there were regulations--
Justice Antonin Scalia: So it is prohibited by regulations.
Let's not play games.
Ian H. Gershengorn: --So, Your Honor, I don't -- I -- I think we would prevail even under that interpretation because it's prohibited by regulations that the statute mandated to be disclosed.
But I think under this Court's decisions in Robertson and in Sims, which addressed the question of specifically exempted from disclosure by statute, and this Court said that in Robertson, a regulation that gave to the administrator authority to -- to ex -- to dis -- exempt from disclosure after a public interest weighing, and in Sims where the Court had a statute that just gave to the CIA director an instruction to protect sources and methods, and the Court said in both cases that was specifically exempted by statute.
Chief Justice John G. Roberts: Well, your reasoning is--
Justice Ruth Bader Ginsburg: What--
Chief Justice John G. Roberts: --would -- it apparently came as a surprise to the government lawyer in the court of appeals.
He said, I'll be as clear as I can.
Specifically prohibited by law here means statute.
Ian H. Gershengorn: So, Your Honor, I--
Chief Justice John G. Roberts: Again, the MacLean is supposed to know something that the lawyer -- government lawyer and the court of appeals doesn't know.
Ian H. Gershengorn: --So, Your Honor, I think that that statement -- the lawyer did say that.
But the lawyer went on to explain that regulations promulgated pursuant to a statutory mandate would control, and that's what the Federal Circuit understood.
Justice Ruth Bader Ginsburg: --But now you think -- you seem to be arguing that it's not simply mandated by statute.
You use the two FOIA examples that you gave was authorized or permitted.
So what is your position today?
Before the Federal Circuit, it seems to have been this is statute, not regulations.
Now it's some regulations, but we don't know whether regulations that are mandated or regulations that are merely authorized.
What is it?
Ian H. Gershengorn: So let me be as clear as I can.
We believe that it is specifically prohibited first by a statute, which was the argument that was made clearly below, and by -- and -- and in the briefs here and that this qualifies.
Second, we think that it is prohibited by regulations that are prohibited pursuant to a statutory mandate -- that promulgated pursuant to a statutory mandate.
And if I could point the Court's attention to page 15a.
Justice Anthony Kennedy: Excuse me, I must have misunderstood.
I asked you whether or not the employee could be terminated if only the statute were on the books and no regulations yet, and I thought you said no.
Ian H. Gershengorn: Because there would be no SSI designated.
Justice Anthony Kennedy: All right.
Ian H. Gershengorn: But once there's -- sorry.
Justice Anthony Kennedy: --So then -- so then the statute alone does not carry the day.
Ian H. Gershengorn: So, Your Honor, I don't think that's the way the Court looked at it in Robertson and the way the Court looked at it in Sims, because in both of those cases, there had been no determination not to disclose until the administrator made the determination, and yet the Court found that those were specifically -- that they were specifically -- nondisclosure was specifically authorized by statute.
If I could just finish the answer to Justice Ginsburg and to the Chief.
At -- to the Chief Justice.
At page 15a in the Petitioner's Appendix, what the court -- the Federal Circuit said was,
"Regulations promulgated pursuant to Congress's express instructions would qualify as specific legal prohibitions. "
Both arguments were--
Chief Justice John G. Roberts: I'm sorry, what was that quoted from?
Ian H. Gershengorn: --That was from the Federal Circuit's decision at 15a.
It's at 15a attached to the -- to the petition.
So the Federal Circuit understood, just as -- as they said, that regulations promulgated pursuant to Congress's express instructions would qualify as specific legal prohibition.
Justice Sonia Sotomayor: Counsel, would you qualify, assuming -- because Congress disagreed with Robertson and -- didn't it?
And it then amended FOIA.
Ian H. Gershengorn: Congress amended FOIA, yes, Your Honor.
Justice Sonia Sotomayor: All right.
Assume that we read statute more or less the way that FOIA does--
Ian H. Gershengorn: Okay.
Justice Sonia Sotomayor: --the amended FOIA.
Do you meet the amended FOIA criteria?
Ian H. Gershengorn: We do, Your Honor.
Justice Sonia Sotomayor: All right.
And which prong of it and why?
Ian H. Gershengorn: We meet the -- first of all, I would just like to say that the Senate legislative history expressly considered this very question and said that if that -- that we -- I'm sorry.
Can I step back one second, Your Honor?
We don't think that you need to meet those amended -- so -- the -- the amended FOIA.
But taking that as a given, Your Honor, what the Senate report said was--
Justice Sonia Sotomayor: It seems to be eminently reasonable despite Robertson.
Ian H. Gershengorn: --It seems -- Your Honor, once this Court--
Justice Sonia Sotomayor: I mean, but that's basically what you're arguing, is that -- one of the two FOIA exceptions.
So tell me which one.
Ian H. Gershengorn: --So it's the FOIA exception, Your Honor, that -- that establishes particular criteria for withholding or refers to particular types of matters withheld.
And we think in the legislative history what the Senate report said was that the Sims statute, the Section 102(d)(3) of the National Security Act of 1947, would qualify and that's a statute that said,
"The director of CIA shall be responsible for protecting intelligence sources and methods from unauthorized disclosure. "
That was all it said.
That's no different from our statute and we think that even if this -- we think--
Justice Sonia Sotomayor: Yours is, I think, a little bit more specific than that.
Ian H. Gershengorn: --Then perhaps more specific.
So we think that -- that it follows a fortiori that if the Court relies on statute, that we meet that statute and, of course, that -- that makes perfect sense.
If the Chief Justice were--
Justice Stephen G. Breyer: Well, my goodness.
I'm not sure.
I mean, when you have a CIA statute, they say you cannot disclose agents or sources and -- what does it say?
Ian H. Gershengorn: --Your Honor, it says, “ The director of ”--
Justice Stephen G. Breyer: Sources and methods, intelligence sources and methods.
And there's another one that refers to critical infrastructure information.
If I accept those as being sufficiently specific or having sufficient criteria, I look at yours.
And yours says,
"There shall be regulations prohibiting the disclosure of information obtained or developed in carrying out security. "
--and now here's the criterion --
"if the under secretary decides disclosing information would be detrimental to the security of transportation. "
Now, that it seems to me could include everything from a spark plug that is deficient in the airplane to a terrorist.
And -- and I don't -- I mean I don't know how I would judge that.
I mean, to the ear telling the CIA you can't disclose sources seems a lot narrower than telling the Department of Transportation or Homeland -- what is it, DOT -- that, everybody in charge of airplanes, you have a regulation, detrimental to the security of transportation.
I don't know.
How would you decide it?
I mean, it sounds to me that that's quite a lot broader and so much can be detrimental to the security of an airplane.
Ian H. Gershengorn: --So, Your Honor, a couple of points on that.
First of all, the -- the Court interpreted the statute in Robertson to be sufficiently specific.
And in Robertson, what the Court -- what the statute said was,
"An administrator shall order information withheld from public disclosure when, in the judgment of the administrator, the disclosure would adversely affect the interest of the person and is not required in the interest of the public. "
It's much less specific.
Justice Stephen G. Breyer: Now, that's the one before.
Ian H. Gershengorn: But that's the one this Court found sufficient.
Justice Stephen G. Breyer: That may be what this Court did.
But subsequent to that, Congress amended the Act, as was just pointed out, in a way that says you have to have specific criteria.
Ian H. Gershengorn: But if I may, Your Honor.
It amended FOIA, but strikingly, the Court -- the Congress did not amend and include that language when it passed the CSRA.
In fact, what Congress did--
Justice Stephen G. Breyer: Okay.
I'll look at that.
I'll look at that.
I'm not -- I can deal with that on my own.
But I do have a question that only you can deal with.
And the question I have that only you can deal with is this.
I mean, obviously, it's a matter of concern that someone could go around and say there are no marshals on this airplane.
That is obviously a matter of concern.
So if in fact that was a real worry about blowing up airplanes for that reason, could the President then simply use the second prong and say an executive order will require that to be kept secret?
Ian H. Gershengorn: --Your Honor, the President could do that.
Justice Stephen G. Breyer: All right.
Now, in doing that, in doing that, does it automatically fall into the 400,000 regulations that govern Defense Department security information, or could he say, for the purpose of this statute, what we're talking about now, I determine that it should be kept secret.
Therefore, there is no -- no prohibition against people communicating that information with Swedish people, British people, all kinds of airline officials, et cetera?
Now, you're saying yes, he could do that under this second prong, yes or no?
Ian H. Gershengorn: Yes, because there's an executive order--
Justice Stephen G. Breyer: Yes.
If that -- if he can do that, then there is no worry.
Ian H. Gershengorn: --Your Honor--
Justice Stephen G. Breyer: Because if this -- am I right, there is no worry?
Ian H. Gershengorn: --No, Your Honor.
Justice Stephen G. Breyer: Because if, in fact, this is going to lead to blowing up airplanes, all he has to do is use that second prong.
Now, you say I'm not right.
Ian H. Gershengorn: You're not right, Your Honor, because that is fundamentally inconsistent with the judgment that Congress made that the SSI system should coexist with the classified information and with executive orders.
What Your Honor is saying is that it doesn't matter that the SSI system that Congress set up doesn't -- wouldn't work and can't function because the President by executive order could fill in the gaps.
But what Congress--
Justice Stephen G. Breyer: I'm not saying anything like that.
I am worried about a practical matter.
I am worried about the decision of the Court against you leading to somebody blowing up an airplane.
And I suddenly thought, as a practical matter, that is not a serious worry because the President can always use the second prong to keep people from disclosing the information that you don't want disclosed.
And so far, you've said I'm right and now you got into a legal argument.
I'm not talking about a legal argument.
Ian H. Gershengorn: --So, Your Honor, I think such a system could be devised, but I think it would be a very odd construction of the statutes the Court has before it to -- to say that we are going to undermine and eviscerate the SSI system that Congress by statute--
Justice Stephen G. Breyer: No, no.
I am just worried -- look.
Let me ask my question.
And my question is: If for other reasons I decided you were wrong, would I still have to face the problem of airplanes being blown up?
I'm focusing on this because it's very important to me.
And you have answered that question, if for other reasons -- and you, of course, think you're right -- but if for other reasons I thought you were wrong, I wouldn't have to worry about that practical problem because there is prong two.
And it's important to me that you answer yes or no and I take your answer to be yes, you are right as a practical matter.
Ian H. Gershengorn: --I think it is possible that the President could entirely duplicate the SSI system that Congress set up to help to prevent that practical problem.
Justice Samuel Alito: To follow up on that, if the President proceeded along that path, what would be the consequences with respect to the people, the class of people who would be able to have access to this information?
Would this -- this would be classified information and then only people with certain security clearances would be -- no?
Ian H. Gershengorn: So the system could not work, Your Honor, if it was a classified information system.
Justice Samuel Alito: No.
I'm talking about Justice Breyer's alternative.
Ian H. Gershengorn: So Justice Breyer's system, the answer is we would be in uncharted territory.
I don't know as a fact that the President -- the President would have to essentially duplicate the SSI system.
And it's precisely because it doesn't work under the classified information system that already exists, because this is information that is very sensitive, yet has to be shared among people who are operating our -- our transit system, so that flight attendants need to know--
Chief Justice John G. Roberts: Yes.
But what's so hard about duplicating the SSI system?
He signs an executive order saying duplicate the SSI system and right away the problem we have here of people like Mr. MacLean revealing information is not a problem anymore because it is then protected by executive order.
Ian H. Gershengorn: --So, Your Honor, I -- I just -- I -- I think that that would work, but I have to say I'm not sure of the ins and outs.
But I do think it's critical to say--
Justice Antonin Scalia: It would have one good effect and that is, it would make sure that the matter is important enough to occupy the President's attention and is not so insignificant that an agency that just doesn't want any whistleblower, doesn't want any criticism of what it's doing, can pump out these regulations.
It would have that -- that salutary effect, wouldn't it?
Ian H. Gershengorn: --Your Honor, it might have that effect, but I think that that's the judgment that Congress made.
What Congress did was set up this SSI system, knowing that the President had authority under the executive order, knowing that the classified information system was set.
And what Congress -- and knowing, in fact, what these regulations said, the very regulations in -- in basically the same form that we have today.
When Congress created -- moved TSA into the -- into DHS as part of the Homeland Security Act, these regulations were already there and Congress had them before it.
And what Congress said was that SSI--
Justice Elena Kagan: Mr. Gershengorn, if I could, before you get away from this, and I understand you have a statutory argument to make, but the way that the President would do this, if he wanted to do it, would be by a new executive order or, in fact, would this old Executive Order 13556, which deals with controlled unclassified information, is that what the President would use?
Ian H. Gershengorn: --Your Honor, I'm not sure of the ins and outs of what the President would have to do.
This is information that is shared outside of the government, which is what makes it a little tricky.
These are -- they are shared with -- with flight attendants.
They're shared with local--
Justice Elena Kagan: Right.
But I thought that that class -- that class of information, controlled unclassified information, as opposed to classified information, could be shared outside the government and Executive Order 13556 deals with that and the President could simply make clear that that executive order applies to this kind of information.
Ian H. Gershengorn: --So, Your Honor, I just don't know the answer to that, whether that order would -- would satisfy.
My sense is that it would take a lot more than that to -- to duplicate the kinds of SSI system that has been in place for over a decade and a half and that Congress signed off on.
But it -- it -- and so the exact form of the executive order, it's not something that, quite frankly, I think we've contemplated here because there is this regime that Congress had set up.
Chief Justice John G. Roberts: Well, about -- you talked about what Congress meant and set up.
But the conference report says the language does not refer to agency rules and regulations.
So, whatever staffers prepared that, and I'm not suggesting Congress did, but whatever staffers prepared that, again, MacLean had to know more than they did.
Ian H. Gershengorn: So, Your Honor, I don't think that's right.
And I think this is a situation -- I'm going to make the initial point and then step back if I could and make a series of points on this.
I think this is a situation in which the Court has -- would be right to view that legislative history with some skepticism and here's why.
What Congress had before it was a bill that said, but from the Senate side, that said “ prohibited by statute ”.
Had Congress passed that, we wouldn't be here making our regulatory argument.
What Congress adopted was a provision that says “ specifically prohibited by law ”, a phrase that--
Justice Antonin Scalia: Yes.
But elsewhere in the same legislation, it refers to
"prohibited by law, rule or regulation. "
Ian H. Gershengorn: --It does.
Justice Antonin Scalia: Here, it just said “ by law ”.
Elsewhere in the same statute it says,
"by law, rule, or regulation. "
What am -- what am I supposed to conclude from that?
Ian H. Gershengorn: So I think what you need to conclude from that, Your Honor, is that the term “ by law ” has to exclude at least some rules and regulations, and we think that it does.
It excludes those that are internal agency regulations and regulations relating to agency organization, practice or procedures.
Justice Antonin Scalia: How do we know that?
Ian H. Gershengorn: Because that is the presumption that this Court set up in Chrysler.
What Chrysler did was interpret the phrase “ authorized by law ”, and what the Court said that “ authorized by law ” meant had a well-established meaning and that well-established meaning was that regulations that met the three-part test in Chrysler, that they were substantive regulations of a legislative type, that they were reasonably within the contemplation with Congress, and they were properly promulgated, were regulations that counted as by law.
The Court expressly distinguished internal agency interpretive rules and agency rules of organization, order, and practice and said those were different.
We think that is the distinction that is in the statute.
Justice Antonin Scalia: If -- if that is true and if that is so obvious, Congress would not have -- have to have said
"by law, rule, or regulation. "
in the other provision.
It could just have said “ by law ” and what you said would automatically follow.
Ian H. Gershengorn: No, Your Honor.
"law, rule, or regulation. "
is the formulation that sweeps in agency internal rules and regulations and regulations promulgated pursuant to the housekeeping reg.
That is precisely the distinction that the Court drew in Chrysler and it is precisely the distinction that we draw in the statute.
When the statute says
"by law, rule, or regulation. "
it includes all lawfully promulgated regulations, including interpretive rules, including agency's rules of procedure and practice.
When the statute says “ by law ”, what the Court -- what is meant and what Chrysler said had a well-established meaning that -- that would require a clear showing to overcome is that it includes statutes and it includes regulations that meet the Chrysler three-part test.
So that is the precise distinction that this Court -- that this Court drew in Chrysler, and it is embodied in the statute.
To read it otherwise is to say that--
Justice Elena Kagan: But the place -- Mr. Gershengorn, Chrysler was -- it just said “ law ”.
“ Law ” was not juxtaposed in the same sentence as another phrase that said “ law, rule and regulation ”.
So that would seem, that juxtaposition of the two very different terms, would seem to defeat the Chrysler presumption.
Ian H. Gershengorn: --So, Your Honor, the reason I don't think it does is because it is equally consistent with precisely the distinction that Chrysler drew between regulation -- rules, regulations with the force and effect of law on the one hand and internal rules and reg -- and rules of agency--
Justice Antonin Scalia: Boy, that is subtle.
That is so subtle, that Congress is going to draw that distinction between substantive rules and procedural rules by saying “ law ” here and
"law, rule, or regulation. "
You can spin out that argument, but the notion that this is what Congress had in mind when it enacted this thing or that any member of Congress had in mind when he voted for it, I -- I find that hard to believe.
Ian H. Gershengorn: --So, Your Honor, the reason why I don't think you should find that hard to believe is the following.
First of all, by going from “ by statute ” to “ by law ”, right, Congress went from a narrow -- a narrow structure that would have plainly foreclosed regs and instead moved to a much broader formulation that this Court had given meaning in Chrysler.
Justice Ruth Bader Ginsburg: One -- there was one view that by going to “ law ” rather than “ statute ” what was meant was to include judicial decisions.
Ian H. Gershengorn: --Your Honor, it does say that in the -- in the legislative history, but that's precisely why I think this Court should view that with some skepticism.
It's hard to believe that the term “ by statute ” would not have included constructions of statutes that this Court made.
And so to justify the move from “ by statute ” to “ by law ” to say we sweep in the Court's interpretation of statutes, I think, is a little hard to swallow.
If I could reserve the balance of my time.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE RESPONDENT
Neal K. Katyal: Thank you, Mr. Chief Justice, and may it please the Court:
Congress enacted the Whistleblower Act to restrain, not to empower, agencies.
Now, my friend's answer at the start of his oral argument was the specter of 60,000 people who are going to leak this information.
We're not in a Chevron situation in which the agency is getting any sort of deference here.
And as Justice Breyer's line of questioning, I think, points out, that is a red herring, because Congress in (b)(8) of the Whistleblower Act dealt with precisely that.
They gave a mechanism for the President--
Justice Sonia Sotomayor: Mr. Katyal, if the statute read,
"Disclosure of information detrimental to transportation safety is prohibited and the TSA shall promulgate regulations to that effect. "
would that be pursuant to law under the statute?
Neal K. Katyal: --I don't think so.
I'll explain why in a moment.
Justice Sonia Sotomayor: And That's what I want to know.
How specific does -- are we going to get to a point where Congress has to look at every category of information every agency deals with and make a law prohibiting the disclosure of that individually?
Neal K. Katyal: Not at all, Your Honor.
So with respect to the backup argument of the government, 114(r), we have two different views -- two different arguments.
One is that 114(r) doesn't prohibit.
The other is that it's not specific.
And your hypothetical deals with the first and not the second.
So you've already -- the Congress is doing the prohibiting, unlike 114(r), which, as Justice Kennedy pointed out, doesn't actually do anything.
You need the regulation.
With respect to specificity, I think Congress has two different options in (b)(8).
One is to pass a specific law.
The opposite of “ specific ” is “ general ”, and I think the words “ detrimental to transportation security ” aren't specific enough.
And if you need any illustration of that, just look to my friend's argument in the reply brief that the Chief Justice pointed out, where he said that -- that information -- that you could release information about how important flights weren't covered.
The SSI regulations flatly call that SSI material -- this is 49 C.F.R. 1520.5(b)(1) and (2), quote:
"Information concerning the deployments and operations of Federal air marshals are covered. "
That is SSI material.
And so he can't even give you--
Justice Sonia Sotomayor: Do you have any doubt that the -- that -- make the argument that the disclosure of this information didn't potentially harm transportation safety?
Neal K. Katyal: --Certainly.
That's Mr. MacLean's whole position, which is that he saved national security.
This was a situation unfolding in real time in a 4-day period and he did everything he could from going to the Inspector General and to a supervisor in -- in a quick thing in order to save something that otherwise would have been detrimental to national security.
Now, my other point about the specificity--
Justice Antonin Scalia: And he was successful.
Neal K. Katyal: --And he was, and the TSA admitted there was a mistake.
Justice Antonin Scalia: They called off the cancellations.
Neal K. Katyal: Exactly.
The other point about--
Justice Samuel Alito: I'm sorry.
Neal K. Katyal: --The other point about specificity is Congress has a whole other way of dealing with it, as Justice Breyer pointed out, which is the critical information, infrastructure regulation -- regulations and the like.
Congress can enact a notwithstanding clause--
Justice Sonia Sotomayor: So are you saying that this statute is not specific enough for a FOIA request?
If someone under FOIA had come in and asked for this information, they could have gotten it?
Neal K. Katyal: --Your Honor, 114(r)'s first words are “ notwithstanding FOIA ”, okay.
And it only is notwithstanding FOIA.
Congress is free to do precisely that with respect to the Whistleblower Act, either notwithstanding all laws or notwithstanding the Whistleblower Protection Act, and pass the most general statute imaginable.
It doesn't have to be specific.
Justice Sonia Sotomayor: So you want us to de-couple FOIA from this.
It would be okay under FOIA for the agent to withhold this information?
Neal K. Katyal: That's exactly what Congress has said.
Justice Sonia Sotomayor: Because you think it's -- that you think it's -- that particular types of matter to be withheld.
You agree with the government that that includes this kind of material.
Neal K. Katyal: It very well may satisfy FOIA, particularly because of the first clause, which is “ notwithstanding FOIA ”.
So you don't have to deal with this.
But -- but here, the statute doesn't say anything like that and so for that reason it's not specific.
Justice Stephen G. Breyer: No.
But the statute -- the statue other than the FOIA exemption 3 language doesn't talk about when a matter is kept secret by statute, as opposed to by regulation.
So given that it's all tied in together, it's very tempting to say, I'll tell you when it's a statute rather than a regulation.
And then you go and read the -- the exemption 3 and you say it's a statute when, 1, it leaves no discretion on the issue, or 2, it establishes particular criteria for withholding; or 3, it refers to particular types of matter.
So we look at the statute to see if it does that.
That's what I thought I was supposed to do, to decide whether it's the statute that's doing it or the regulation.
And the one that gives me the most trouble on those three is the last one, because it does seem to refer to a particular type of matter, though in very general terms.
But so what do you think of what I've just said?
Neal K. Katyal: Your Honor, we think the best way of understanding specific is to think about its opposite, which is general.
"detrimental to the security of transportation. "
Yes, if it refers to a particular -- you know, it does refer to a particular matter.
Well, any statute is going to refer to some sort of particular matter, but we think Congress had something deeper in mind.
And, of course, the Freedom of Information Act--
Justice Stephen G. Breyer: I see that.
I see that.
You'd have to say critical infrastructure facilities are on one side of the line.
This is on the other.
Now, what about the analysis I just went through?
What do you think of that?
Is that the correct legal analysis, in your opinion?
Neal K. Katyal: --Well, I think -- I think not.
I think you can pick any definition of specificity.
My worry about adopting the FOIA one is, as Justice Scalia was pointing out to my friend, this statute affirmatively distinguishes in (b)(8) between “ law, rule and regulation ” in the first clause and “ law ” in the second.
And I think Congress is saying, unlike FOIA, that rules and regulations don't themselves do the prohibiting.
It is only law.
That is why the phrase is “ specifically prohibited by law ”.
There isn't anything like that in FOIA.
And, indeed, FOIA has two purposes, as this Court in Robertson said, one of which is to empower agencies.
It has nine different exemptions all about empowering agencies--
Justice Anthony Kennedy: But the gravamen of your position is that after Congress enacted these statutes, anything that came within the WPA definition could be disclosed until Congress passed another statute?
That's what you want us to hold?
Neal K. Katyal: --No, no, not at all, Your Honor.
I think that as long as it has a notwithstanding clause, as many things even before the Whistleblower Protection Act did have, or it has a specific prohibition about specific matters to be disclosed, unlike the general prohibition here,
"detrimental to the security of transportation. "
But there's also a more fundamental point--
Justice Anthony Kennedy: Where could I look to find examples of where, before the regulation, there would be information pertaining to airline flights that could not be disclosed?
Neal K. Katyal: --Well, I'm not sure about airline flights, but, for example, 10 U.S.C. 2640(h) says, quote,
"The Secretary of Defense may, not withstanding any other provision of law, withhold from public disclosure safety-related information. "
And so that is a notwithstanding any other provision of law.
Justice Anthony Kennedy: But that doesn't apply to this Respondent.
Neal K. Katyal: Well, I'm saying in general, Your Honor, Congress has available to it tools--
Justice Anthony Kennedy: You're saying that this Respondent, until there was a second statute, was not prohibited from disclosing anything within the broad reach of the WPA of
"uncovered a violation of matters relating to specific danger to public health or safety. "
Neal K. Katyal: --That is correct, Your Honor.
We are saying that--
Justice Anthony Kennedy: So Congress passed a statute saying: And we'll pass another statute sometime before this has any effect?
Neal K. Katyal: --Your Honor, Congress in 114(r) was not dealing with the Whistleblower Protection Act.
The language at the start is “ Notwithstanding FOIA ”.
We certainly think Congress could deal with it if they wanted to, but I think, as the members of Congress brief points out, they likely won't.
Because people like Mr. MacLean promote the national security.
They don't harm it.
Justice Samuel Alito: Can I ask you about that?
You say in your brief Mr. MacLean contacted a reporter with a history of responsible reporting about TSA who maintains close connections with Congress.
Now, suppose that he instead contacted a reporter working for a foreign state-controlled news agency and the information was not quickly released to the public, so that the information was out there and could have been obtained, perhaps, by terrorists before Congress was aware of this and before the agency was aware of it and before it was able to take corrective action.
Would there be any reason why that would not fall under the statute, as you understand it?
Neal K. Katyal: Justice Alito, I don't believe the Whistleblower Protection Act deals with that.
Of course, Congress could, by circumscribing the Act in various ways.
But here's what I think Congress did in (b)(8).
They said not just can Congress pass a specific exemption or a nonspecific one with a “ notwithstanding ” clause.
They said the President, by executive order, can deal with precisely this problem and it doesn't require classification and it doesn't require somehow two systems that are going to--
Justice Stephen G. Breyer: In your view you don't even need the President.
In your view, the President wouldn't get involved because you have to have a very specific statute.
That's your view.
Neal K. Katyal: --No, Your Honor.
Justice Breyer, there are two different ways in (b)(8) for Congress to deal with the problem.
Justice Stephen G. Breyer: I know that.
I'm just saying but you don't even get into it because it was in a regulation and not in a statute.
And if it's not in a statute, then you don't even get into that.
Neal K. Katyal: Right.
I'm dealing with the circumstance that Justice Alito's posited, in which you have 60,000 people who might leak to foreign media or something like that.
And if the government believes that, they can solve that problem literally today by walking out of this courtroom, having an executive order that says SSI material, like the material here, air marshal information, is exempt from the Whisteblower Protection Act.
Congress passed that clearly in (b)(8).
And as Justice Scalia says, that's the way to promote accountability.
They didn't want unelected agencies -- the fox to guard the hen house.
Justice Samuel Alito: Well that may be.
But I doubt if Congress had thought about the situation that I posited, they would be content with the possibility of a disclosure that wasn't really a disclosure to the full public.
Neal K. Katyal: Well, I think, Justice Alito, Congress has dealt with this question about how to whistleblow, do you need an exhaustion requirement, and so on, and other things.
And every single time -- they've amended the Act four times.
And every single time, they've said the problem is not too many whistleblowers, it's too few.
Congress recognizes it's really hard for someone like Mr. MacLean, other whistleblowers, to go to the media because they put their job at risk, they get fired.
And then they have to spend years litigating, as this litigant has, just to get his job back.
And they do that only in the name of public interest.
There's no private gain or anything like that.
So, Justice Kennedy, of course Congress can prohibit the disclosure of this information in general.
They have in 114(r).
The question before the Court here is have they done so with respect to the Whistleblower Protection Act?
Have they done something specific enough to deal with the Whistleblower Protection Act?
And the answer to that, we think, is no because--
Justice Antonin Scalia: I'm a little concerned about your acceptance of the hypothetical that the whistleblower doesn't blow the whistle to anybody except the Soviet Union.
Do you really think that that's what the statute means when it says to take or fail to take or threaten to take personnel action with respect to any employee because of any disclosure of information which the employee or applicant reasonably believes evidences a violation of law, rule or regulation, gross mis -- don't you think it's implicit in that he's disclosing it to somebody who could remedy the problem as opposed to an enemy?
Neal K. Katyal: --It may very well be precisely right.
Our simple point here is that, whatever that standard is, that's a constant in this case.
And if to the extent the Court is worried about it at all, I think Congress in (b)(8) provided mechanisms to deal with that, either a specific or nonspecific order or an executive order that doesn't require classification.
It doesn't require mucking up at all the classification system.
Justice Sonia Sotomayor: I'm troubled because the facts are very much in your favor here, because he disclosed it publicly, but under your scenario or under your position, if he published every day until the executive order came out the schedule of which flights air marshals will be on and he would come out and just say, I think we need more air marshals, that would be -- that would not be a violation.
They couldn't fire him for that.
Neal K. Katyal: Justice Sotomayor, Congress has dealt with that, I think, at various points in the Whistleblower Act, asking the question, is this too loose a standard and so on.
Every single time they've concluded not.
Because it is so hard for whistleblowers to come forward.
The former government officials' brief at page 34 gives you data on this.
There have been 203 cases that have gone to the Federal Circuit, whistleblower cases, and they've won -- whistleblowers have won a whopping three of them.
There have been 56 cases that have gone to the MSPB.
Again, whistleblowers have won three of them.
Chief Justice John G. Roberts: Which way does that cut?
It seems to me that cuts very much against you.
In other words, whistleblowers are blowing the whistle all the time without any justification.
That's I thought the government's point, that this requires, puts all the eggs in the basket of whatever the whistleblower happens to think is a good disclosure.
Neal K. Katyal: I think not, Mr. Chief Justice.
I think Congress each time has looked at this situation and has said every single time, we need more whistleblowers to come forward, because that's the human failsafe against a machine bureaucracy.
Justice Stephen G. Breyer: Congress -- I mean, I know people don't want to bring this up.
But actually the staffs of congress do consider these problems.
They write them down.
They say what the answer is and the members are informed.
Now, in this particular case, if you happen to read the conference reports, you get the answer.
It says, what does it mean not specifically prohibited by law?
And then in both the House report and the Senate report, it tells you, go back to what we passed two years ago, namely, the FOIA exemption, and that's what it means.
And so that's why I got the thought that maybe that is what it means.
And once you have that thought, you then see the country isn't going to fall apart because they wrote in the presidential exemption as well.
So reading what the staffs actually wrote, perhaps I'm biased in that respect, believing that the members of Congress do think about these problems through staff, we have the answer to this case leaving only open whether it is specific enough or not, and you make an argument that it's too general.
Now, why shouldn't I follow that approach?
Neal K. Katyal: So I think generally, you should -- you should, Justice Breyer.
That is, I think the conference report, and this is quoted in our brief at page 24, this is unlike almost any case I've seen before this Court in recent years in which the conference report so clearly gives you the answer to the question presented.
Justice Stephen G. Breyer: There are three reports.
One is really for you, and that's the conference report.
The Senate report is somewhat against you because it picks up the FOIA -- or the FOIA exemption, and says that's what this means, even though you don't want to do that and--
Neal K. Katyal: Your Honor--
Justice Stephen G. Breyer: --I would read all of them, the House report, too.
Neal K. Katyal: --let -- let me address the Senate report and the FOIA stuff.
We think even under the FOIA standard, we don't think this is a particular matter, that that itself is too general.
But, Justice Breyer, there's two other things about that Senate report--
Justice Sonia Sotomayor: Excuse me.
Then you would say that under FOIA -- I mean, assuming I follow Justice Breyer's approach -- you would be leading to the conclusion that the government -- if a FOIA request is made, the government has to disclose it because it doesn't -- because it's not -- the -- the statute is not referring to a particular type of matter to be withheld.
It's not particular enough for you.
Neal K. Katyal: --Well, I think that the language of 114(r) in the first notwithstanding clause is enough to basically just bracket FOIA.
With respect to the -- the Senate report--
Justice Sonia Sotomayor: Just answer my question.
You're saying the government couldn't withhold it under FOIA?
Neal K. Katyal: --No, I think that they could under FOIA, which has a very different situation, which it's empowering agencies to try and make certain exemptions.
The Whistleblower Protection Act, I think, should be read with the reverse view in mind.
Justice Breyer, the Senate report, the Senate language of the bill didn't even have the word “ specifically ” in it.
So I'd urge you not to look at the Senate report when reading the word “ specifically ”.
I agree there's some language where they talk about Robertson and the like, but actually, page 154 has the text of the Senate bill, and it doesn't even have “ specific ” in it.
So that's why we would caution against using that as your template for deciding what “ specific ” is.
Justice Samuel Alito: Mr. Katyal, if you agree with the suggestion that this could be remedied by the President through an executive order, could I -- do you agree with that?
Neal K. Katyal: I do.
Justice Samuel Alito: Now, could I ask you how that would -- how that would work out?
Let's say -- let's just take this example.
Suppose the information in question concerns the -- the layout in a particular airport.
There's an area that -- that some employee of the TSA thinks is not secure.
So that's the information.
Then the information comes out that there's this problem with that particular airport and the -- the TSA employee thinks that it's not being remedied, so this person wants to disclose it.
Now, how would that -- this information has to be disclosed to a certain number of people associated with that airport in order for the problem to be remedied.
So how would that be dealt with in an executive order?
The President has to issue an executive order about that specific thing and say, this can be disclosed to security people at the airport, the local police, maintenance people who are going to fix that.
How would you deal -- how would that be dealt with?
Neal K. Katyal: Two different ways.
One is through the classification regime.
The other, as we've been talking about with Justice Breyer, is through the nonclassified SSI system.
The President can pick up the SSI system, in general, under the B-8 exemption because it does deal with national defense and foreign affairs.
There are parts of SSI which may not fall within it, but for the most part, things like this would.
And so the President could designate that information subject to the exception to the Whistleblower Protection Act.
I don't think he has to get into details about who it has to be shared with and who it doesn't, but he certainly could.
With respect to the classification regime, he could also use the classified system to try and exempt this information as well.
My friend on the other side says, oh, no, we can't share information with uncleared people, foreign people and the like.
As our brief at page 52 points out, the classification regime already is supple enough to provide that, as long as it is in the defense of the homeland, as your hypothetical would.
And more to the point, this Court's decision in Eagan, which my friend cites, says that the classification regime is entirely a creature of the executive and can be modified at will.
So if they really believe that you need to do this and share even classified information with uncleared parties, they can do that.
But I think -- so we're not requiring some sort of specificity requirement, either in the executive order or in the congressional solution that is so every jot and tittle or anything like that.
Justice Antonin Scalia: Mr. Katyal, are there criminal penalties for violation of -- of this statute?
Neal K. Katyal: --Not of SSI material, but there are of classified information.
Justice Elena Kagan: Mr. Katyal, can we go back to your legal argument, and let me make sure I understand it.
You're saying don't use the revised exemption 3 standard.
114(r) is narrower than that; is that right?
Neal K. Katyal: That's correct.
Justice Elena Kagan: So that all of our exemption 3 cases essentially become irrelevant; is that right?
Neal K. Katyal: Correct.
Justice Elena Kagan: But the -- and you're doing that based solely on the notwithstanding FOIA language; is that right?
Neal K. Katyal: Well, I am saying that.
I wouldn't want to go too far.
I don't think our argument depends on this.
In other words, I think if you adopted the FOIA 3 standard, I still think that this language, which is detrimental to the security of transportation, is so capacious, heaven knows what it means.
I mean, Mr. MacLean, of course, thought what he was doing was promotion of the national security -- of transportation security, not detrimental to it.
Justice Elena Kagan: I mean, it's very general language, that's absolutely true.
And if you were writing on a clean slate, you might say, gosh, that's very general language.
But -- but we're not writing on a clean slate, and all our exemption 3 cases seem to suggest that very general language can meet the bar.
And so I'm just looking at -- there's this case GTE Sylvania, which was a statute that prohibited disclosure, if disclosure was not fair in the circumstances and reasonably related to effectuating the purposes of the Consumer Product Safety Act.
And we said that was enough, which it's like you look at that and you say, why is it enough?
But that's what we said.
Neal K. Katyal: Right.
But again, I think -- I think the FOIA context is very different than here because FOIA is something about empowering agencies to restrict disclosures.
As this Court's decision in Robertson said, that that there was a preexisting legislative history about how they wanted to keep in place the 100 statutes or so that are anti-disclosure.
The Whistleblower Act, I think, has the reverse idea in mind.
We see this texturally, for those -- for those who -- who are focused on the text, because the statute distinguishes, in the first part, between law, rule, and regulation and law.
And I think it's specifically prohibited by law.
And what Congress is saying by that phrase in the context of this statute is, unlike FOIA, we're not about trying to empower agencies through general language.
And I think this is the most natural way to understand what the statute says.
I mean, I think when -- when -- when the word “ specific ” is used, I think the most helpful way of understanding what Congress had in mind is to think of its opposite general.
That there are two boxes, and detrimental to the security of transportation sounds very much like, frankly, the TSA's mission statement and not anything more than that.
Justice Anthony Kennedy: If -- if Congress wanted to reach your position and it had a choice of the words it would use in the second part of the statute, could it say “ statute ” instead of “ law ” and it would just come out the same way?
Neal K. Katyal: They certainly could use statute.
The -- the--
Justice Anthony Kennedy: And -- and for purposes of this case and generally, there'd really be no difference?
Neal K. Katyal: --Well, I think there may arguably be a difference.
This is found in the conference report language.
They said, we didn't use “ statute ” for a particular reason, which is because they wanted to sweep in not simply the statute and the U.S. code, but also judicial interpretation.
Justice Antonin Scalia: Oh, yeah, I'm sure that's what they all had in mind.
I had no doubt of that.
Neal K. Katyal: Well, Justice Scalia, let me answer because, first of all, it is what Congress said in the conference report, which is, of course, what Congress votes on.
And I understand many people don't like legislative history, but this is the apex of legislative history, as Chief Justice Rehnquist pointed out in the Simpson case--
Justice Antonin Scalia: Does -- does Congress vote on the conference report?
Neal K. Katyal: --They do vote on the conference report.
Justice Antonin Scalia: The whole -- the whole House?
Each separate House?
Neal K. Katyal: I believe that the answer to that is yes.
But I'd also say, the other thing about it is that I do think Congress actually -- what they were saying in the report made some sense because the language is specifically prohibited by law.
And I think what Congress was trying to do was sweep in things like the Trade Secrets Act in which even if that language might look general to a lay observer, the words “ trade secrets ” have been fleshed out by courts over time.
Chief Justice John G. Roberts: Well, I'm a little -- maybe this doesn't make any sense, but you've been focusing on specifically as referring to the material that is covered.
Can't it also refer to the -- the prohibition, specifically prohibited?
In other words, it actually has to say, “ You cannot disclose this ”.
You think it's specifying what “ this ” is.
Couldn't it equally be well specifying how direct the ban must be, “ specifically prohibited ”?
Neal K. Katyal: Right.
So this is the argument in the government's reply brief which comes up for the first time.
It's never been advanced by anyone.
There's no support for it in the -- in the legislative history or I think even, really, the text of the statute.
I think “ specifically ” refers to “ such disclosure ”.
The phrase is
"if such disclosure is not specifically prohibited by law. "
and so I think “ specifically ” is best read as referring to such disclosure.
Justice Breyer, back to your question about the Senate report in 102(d)(3), which is what you were asking about earlier.
It's real important -- I think it's important that I say that the Court -- excuse me, the Congress when they passed the Whistleblower Act rejected the idea that 102(d)(3)--
Justice Stephen G. Breyer: I think I'm talking about the report on the Whistleblower Act.
Neal K. Katyal: --Exactly.
Justice Stephen G. Breyer: And the report on the Whistleblower Act, which it came two years after FOIA, the Senate committee said,
"Those disclosures which are specifically exempted from disclosure by a statute which requires that matters be withheld from the public in such a manner as to leave no discretion on the issue or by a statute which establishes particular criteria for withholding or refers to particular types of matters to be withheld. "
That is word for word.
Neal K. Katyal: Right.
Justice Antonin Scalia: Did the Senate vote on that, Mr. Katyal?
Did the Senate vote on the Senate committee report?
Neal K. Katyal: --They did not--
Justice Antonin Scalia: And did the Senate committee vote on the Senate committee report?
Neal K. Katyal: --I don't believe they did.
Justice Antonin Scalia: No, they don't.
Neal K. Katyal: But, Justice Breyer, that Senate bill that that language is interpreting doesn't even have the word “ specific ” in it.
So that -- the actual bill the Senate is using is at page 154 of that report, it doesn't have it in it, and that's why I don't think it's the best guide for what “ specific ” means.
Now, there is language, as you say, about 102(d)(3) saying 102(d)(3) would meet a specific prohibition.
In section 2306 of the actual Whistleblower Act, which, Justice Scalia, Congress voted on exempts 102(d)(3).
Congress didn't buy this argument that the Government has come up with right now that says that the Senate -- the Senate report means that 102(d)(3) was a specific prohibition because they added this language
"no provision of this chapter shall be construed to impair the authorities and responsibilities set forth in section 102. "
And so Congress itself didn't believe this notion that 102(d)(3) was specific.
They wanted something--
Justice Stephen G. Breyer: You might be right about that, but what's bothering me is the more general question of driving an interpretive wedge between the FOIA exemption and the Whistleblower Act.
I mean, that's going to get everybody good and mixed up, I think.
Neal K. Katyal: --Your Honor, I don't think our answer depends on that.
That is, I think that this doesn't meet the--
Justice Stephen G. Breyer: Yeah, but which in your opinion is the wiser way to go about it?
I mean, assuming that this statute is not specific enough, which is the better way to go about it?
To say the Whistleblower Act is special or to say interpret them both alike?
Neal K. Katyal: --I think either is equally plausible because FOIA and the Whistleblower Protection Act are two very different statutes.
This Court has said in Robertson that FOIA has two goals, one of which is about empowering agencies.
Here, nobody has said that.
The text of the Act never refers to empowering agencies as Justice Scalia said.
And Congress with respect to the Whistleblower Act is concerned about incentivizing them to come forward.
That's what the Members of Congress brief says, as well as the Office of Special Counsel brief.
There's no fear about chilling FOIA requests for heaven's sakes.
Justice Elena Kagan: But that suggests that we take, essentially, the same language and read it two different ways, just dependent on our sense of the purpose of the underlying statute.
Is that right?
Neal K. Katyal: Well, I think that is available to the Court.
But again, you can use the FOIA standard and there is no way--
Justice Elena Kagan: But I'm just asking if we -- your decoupling argument is essentially based on the notion that these two statutes have very different purposes and, therefore, we can take those very different purposes and read the very, very similar language differently.
Neal K. Katyal: --Yes, Justice Kagan, for purposes of 114(r), which, of course, bothers to specify only FOIA by saying “ notwithstanding FOIA ” and then goes through the detrimental transportation security.
Doesn't specify the Whistleblower Act.
Congress can, of course, deal with this by having a more general notwithstanding clause.
Justice Antonin Scalia: I thought you were relying on text.
I thought you were relying on the difference between law and law, rule, or regulation.
Neal K. Katyal: Absolutely.
That's our primary--
Justice Antonin Scalia: It's not just purpose.
Neal K. Katyal: --Absolutely.
So that's our primary argument--
Justice Antonin Scalia: Thank you.
I was worried for a minute.
Neal K. Katyal: --Thank you.
If the Court isn't worried with anything else--
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Gershengorn you have 4 minutes left.
REBUTTAL ARGUMENT OF IAN H. GERSHENGORN ON BEHALF OF THE PETITIONER
Ian H. Gershengorn: Thank you, Mr. Chief Justice.
I'd like to make two principal points.
First, the question here is whether -- the principal question I'd like the Court to decide is whether this disclosure was specifically prohibited by statute.
We believe it is, and I think it's very interesting today -- Justice Kagan, you pointed out that the precedent seems to require that.
Justice Breyer, you pointed out that the legislative history in the Senate report seems to require that result.
Justice Alito and Justice Kennedy, you pointed out that the practical effects of Respondent's position would seem to be grave.
Mr. Chief Justice, you pointed out and we completely agree that the term “ specific ” which is critical to their argument could just as easily, and we think properly, mean express, which is what it means here.
And Justice Scalia, you asked about criminal penalties, but the statute itself does not provide criminal penalties just as Mr. Katyal said, but it does provide civil penalties.
We think in that situation where you have the prior case law, the legislative history, the practical effects and the plain text that to say that a statute that mandates nondisclosure regulations does not specifically prohibit disclosure is just a very odd construction.
The principal practical arguments we've heard today are that we don't have to worry because Congress could have had an executive order to make it work.
We continue to think there is no dispute that the SSI system doesn't work under Mr. Katyal's construction.
The idea that what Congress expected was a duplicative executive order to mimic the SSI scheme seems very odd to us, and seems like a very odd way to construe congressional statutes.
There was a concern here that there's this fox guarding the hen house.
That may be a concern with the Whistleblower Protection Act, but it has no application here, where Congress itself mandated the nondisclosure regulations, and did so knowing precisely what those regulations were when it did so.
And finally, there's been some suggestion that the facts are in Mr. MacLean's favor here.
I would only say this.
What Mr. MacLean -- what a TSA employee has before them is not a full picture of the threats, is not a full picture of the resource constraints, is not a full picture of the other means that the agency is taking and is not possessed with the same experience that TSA has.
Justice Antonin Scalia: Excuse me, I hate to interrupt you, but you worry me.
I assume that if we find for your friend on the other side, the SSI regulations are not null and void.
They would still apply to everybody except whistleblowers.
Isn't that right?
Ian H. Gershengorn: Yes.
Justice Antonin Scalia: It would still be a violation for anybody to make those disclosures unless he's doing it in a whistleblower capacity.
Ian H. Gershengorn: It would be -- yes, Your Honor, but the standard in whistleblowing is do you reasonably believe that there is a specific and substantial danger to public safety?
That is a judgment made on the information known -- reasonably known to the employee and readily ascertainable.
It is not a judgment made with the full picture of the security consequences.
I suggest to the Court, as a step back, that the right way to think about this case is that in a situation where the statute mandates nondisclosure -- just as if the Chief Justice were to tell the marshal to bar me from the courtroom, that it would be perfectly reasonable to say that the Chief Justice had expressly prohibited, specifically prohibited, my presence in the courtroom, even if the marshal were the one standing at the door.
Justice Ruth Bader Ginsburg: Do you know how come that is, Mr. Gershengorn?
Ian H. Gershengorn: Excuse me?
Justice Ruth Bader Ginsburg: How common it is to have regulations specifically mandated as opposed to authorized or permitted.
Ian H. Gershengorn: Your Honor, we're not aware of very many statutes like the SSI statute, where Congress has expressly mandated regulations.
There are things like the 102(d)(3) of the National Security Act, which generally says to the CIA director, protect sources and methods, and statutes like that.
There are, of course, a wide range of nondisclosures, but we're focused principally on the nondisclosure provisions here.
We respectfully ask the Court to hold that this is specifically prohibited by law and in particular by the SSI statute.
Justice Stephen G. Breyer: We would never bar you from the courtroom.
Chief Justice John G. Roberts: He wasn't talking about you.
Thank you, counsel.
The case is submitted.