“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.’ 5 U.S.C. § 2302(b)(8)(A). An exception exists, however, for disclosures that are ‘specifically prohibited by law.’ Ibid. Here, a federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights. The question presented is whether that disclosure was ‘specifically prohibited by law.’”
“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 by 49 U.S.C. § 114(r)(1), which authorized the TSA to promulgate those regulations. . . . [W]hen Congress used the phrase ‘specifically prohibited by law’ 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 ‘law’ for purposes of Section 2302(b)(8)(A). . . . [Furthermore], by its terms Section 114(r)(1) did not prohibit the disclosure at issue here.”
