Supreme Court to decide whether air marshal should be protected as whistleblower


(Gary Cameron/Reuters)

The Supreme Court said Monday that it will decide an important question of when a federal employee may release to the public sensitive information from his agency that he feels endangers fellow citizens.

The court agreed to a request from the Obama administration that the justices review a lower court’s decision that a federal air marshal may have been unfairly fired for going to the media about a security plan with which he disagreed.

Robert J. MacLean was an air marshal in 2003. Just after being briefed about a potential terrorist attack, MacLean said he received another message from the Transportation Security Administration: that because of a budget shortfall, the agency was cutting back on overnight trips for undercover air marshals.

MacLean said he went to his boss, who told him to keep quiet. Instead, he leaked the information to a reporter for MSNBC. This caused a congressional uproar, and the Department of Homeland Security canceled the order within 24 hours, calling it “premature and a mistake.”

The U.S. Court of Appeals for the Federal Circuit said MacLean was entitled to argue that he was protected by whistleblower laws after he was fired by the TSA in 2006.

The lower court ruling, U.S. Solicitor General Donald B. Verrilli Jr. told the court in a brief, “effectively permits individual federal employees to override the TSA’s judgments about the dangers of public disclosure.”

MacLean’s response was that he should not have been fired for actions that others found heroic and were not unlawful.

“Robert MacLean was a federal air marshal who spoke up about the consequences of a dangerous and possibly unlawful government decision,” wrote Washington lawyer and former deputy solicitor general Neal Katyal.

“Because he blew the whistle, the government changed policy and a potential tragedy was averted. But Mr. MacLean paid a hefty price.”

According to MacLean’s brief, Sen. Barbara Boxer (D-Calif.) thanked the anonymous tipster “who came forward and told the truth.”

MacLean’s identity was not discovered until three years later, when he appeared on an NBC Nightly News program about a different incident.

His disguise on that broadcast “proved to be inadequate,” the government’s brief says, and the TSA fired him for disclosing sensitive security information.

The appeals court said
MacLean was entitled to argue that he was protected as a whistleblower and that his disclosure had not been “specifically prohibited by law.” The government said the regulations passed by the agency, which it contends prohibited MacLean’s actions, were authority enough to fire the air marshal.

MacLean had contended that the plan about eliminating overnight trips was not considered sensitive by the agency; it had been sent unencrypted to his cellphone.

The case, Department of Homeland Security v. MacLean, will be heard sometime during the court’s term that begins next October.

Also on Monday, the justices ruled 6 to 3 that a copyright lawsuit over the 1980 Oscar-winning movie “Raging Bull” was not filed too late, a decision that could lead to more copyright actions against the Hollywood studios.

The suit was filed by Paula Petrella, whose father Frank had collaborated with boxer Jake LaMotta on two screenplays and a book about the boxer’s life. The men assigned their rights to production and distribution company Metro-Goldwyn-Mayer (MGM), which made the movie directed by Martin Scorsese and starring Robert DeNiro, who won an Oscar for his portrayal of LaMotta.

Frank Petrella died before expiration of the original copyright, and the rights went to his daughter. She renewed copyright in 1991 and informed MGM that its continued issuance of the movie infringed upon her rights.

But Petrella waited until 2009 to seek royalties, and a district judge and the U.S. Court of Appeals for the 9th Circuit said such a delay was unreasonable and unfair to the studio that would be hindered from mounting an effective defense after such a long time.

But Justice Ruth Bader Ginsburg, writing for the majority, said the law gives Petrella the chance to pursue her lawsuit.

“There is nothing untoward about waiting to see whether an infringer is making money, so that litigation is worth the candle,” Ginsburg said in announcing the decision, adding that previously MGM had told her the movie was unprofitable.

The studios had argued it was unfair to them to allow such lawsuits after they had already spent millions of dollars promoting the film. But Ginsburg said it was unclear how much MGM would have to pay if Petrella were successful, and courts can take notice of her delay in shaping appropriate relief.

Justice Stephen G. Breyer dissented, and was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy.

The case is Petrella v. Metro-Goldwyn-Mayer, Inc.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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