throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2014
`
`
`Syllabus
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`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`
`
` DEPARTMENT OF HOMELAND SECURITY v.
`
`
`MACLEAN
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE FEDERAL CIRCUIT
`No. 13–894. Argued November 4, 2014—Decided January 21, 2015
`
`In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135.
`That Act provides that the Transportation Security Administration
`(TSA) “shall prescribe regulations prohibiting the disclosure of infor-
`
`mation . . . if the Under Secretary decides that disclosur[e] would . . .
`49 U. S. C.
`be detrimental to the security of transportation.”
`§114(r)(1)(C). Around the same time, the TSA promulgated regula-
`tions prohibiting the unauthorized disclosure of “sensitive security in-
`formation,” 67 Fed. Reg. 8351, which included “[s]pecific details of
`aviation security measures . . . [such as] information concerning spe-
`cific numbers of Federal Air Marshals, deployments or missions, and
`the methods involved in such operations,” 49 CFR §1520.7(j).
`
`In July 2003, the TSA briefed all federal air marshals—including
`Robert J. MacLean—about a potential plot to hijack passenger
`flights. 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, be-
`lieved that cancelling those missions during a hijacking alert was
`dangerous and illegal. He therefore contacted a reporter and told
`him about the TSA’s decision to cancel the missions. After discover-
`ing that MacLean was the source of the disclosure, the TSA fired him
`
`
`for disclosing sensitive security information without authorization.
`
`MacLean challenged his firing before the Merit Systems Protection
`
`Board. He argued that his disclosure was whistleblowing activity
`under 5 U. S. C. §2302(b)(8)(A), which protects employees who dis-
`close information that reveals “any violation of any law, rule, or regu-
`
`lation,” or “a substantial and specific danger to public health or safe-
`ty.” The Board held that MacLean did not qualify for protection
`
`
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`

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` DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
`
`
`Syllabus
`under that statute because his disclosure was “specifically prohibited
`
`
` by law,” §2302(b)(8)(A)—namely, by 49 U. S. C. §114(r)(1). The Court
` of Appeals for the Federal Circuit vacated the Board’s decision, hold-
`
` ing that Section 114(r)(1) was not a prohibition.
`
` Held: MacLean’s disclosure was not “specifically prohibited by law.”
`
`Pp. 5–16.
`(a) The Government argues that MacLean’s disclosure was “specifi-
`
`cally prohibited by law” in two ways: first, by the TSA’s regulations
`on sensitive security information, and second, by Section 114(r)(1) it-
`
`self, which authorized the TSA to promulgate those regulations.
`
`Pp. 5–14.
`(i) MacLean’s disclosure was not prohibited by the TSA’s regula-
`
`
`tions for purposes of Section 2302(b)(8)(A) because regulations do not
`qualify as “law” under that statute. Throughout Section 2302, Con-
`gress repeatedly used the phrase “law, rule, or regulation.” But Con-
`gress did not use that phrase in the statutory language at issue here;
`it used the word “law” standing alone. Congress’s choice to say “spe-
`cifically prohibited by law,” instead of “specifically prohibited by law,
`rule, or regulation” suggests that Congress meant to exclude rules
`and regulations. In addition, Section 2302(b)(8)(A) creates a second
`exception for disclosures “required by Executive order to be kept se-
`cret in the interest of national defense or the conduct of foreign af-
`
`fairs.” That the second exception is limited to actions by the Presi-
`dent himself suggests that the first exception does not include action
`
`taken by executive agencies. Finally, interpreting the word “law” to
`include rules and regulations could defeat the purpose of the whistle-
`blower statute. That interpretation would allow an agency to insu-
`late itself from Section 2302(b)(8)(A) simply by promulgating a regu-
`lation that “specifically prohibited” all whistleblowing.
`
`The Government proposes two alternative interpretations, but nei-
`ther is persuasive. First, the Government argues that the word “law”
`includes all regulations that have the “force and effect of law.” The
`Government bases this argument on the decision in Chrysler Corp. v.
`Brown, 441 U. S. 281, where this Court held that legislative regula-
`tions generally fall within the meaning of the word “law” unless there
`
`is a “clear showing of contrary legislative intent.” Id., at 295–296.
`But Congress’s use of the word “law,” in close connection with the
`phrase “law, rule, or regulation,” provides the necessary “clear show-
`ing” that “law” does not include regulations in this case. Second, the
`Government argues that the word “law” includes at least those regu-
`lations that were “promulgated pursuant to an express congressional
`directive.” The Government, however, was unable to find a single ex-
`ample of the word “law” being used in that way. Pp. 6–11.
`
`
`
`(ii) Likewise, MacLean’s disclosure was not prohibited by Section
`
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`2
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`

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`Cite as: 574 U. S. ____ (2015)
`
`
`Syllabus
`
`114(r)(1). That statute does not prohibit anything; instead, it author-
`
`izes the TSA to “prescribe regulations.” Thus, by its terms, Section
`114(r)(1) did not prohibit the disclosure here. The Government re-
`sponds that Section 114(r)(1) did prohibit MacLean’s disclosure by
`imposing a “legislative mandate” on the TSA to promulgate regula-
`tions to that effect. But the statute affords substantial discretion to
`the TSA in deciding whether to prohibit any particular disclosure.
`
`Thus, it is the TSA’s regulations—not the statute—that prohibited
`
`MacLean’s disclosure, and those regulations do not qualify as “law”
`
`
`under Section 2302(b)(8)(A). Pp. 11–14.
`
`(b) The Government argues that providing whistleblower protec-
`tion to individuals like MacLean would “gravely endanger public
`
`safety” by making the confidentiality of sensitive security infor-
`mation depend on the idiosyncratic judgment of each of the TSA’s
`
`60,000 employees. Those concerns are legitimate, but they must be
`addressed by Congress or the President, rather than by this Court.
`Pp. 14–15.
`714 F. 3d. 1301, affirmed.
`ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
`THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. SO-
`TOMAYOR, J., filed a dissenting opinion, in which KENNEDY, J., joined.
`
`
`
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`
`3
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`

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` Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
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` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`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 protec-
`tions to an employee who discloses information revealing
`“any violation of any law, rule, or regulation,” or “a sub-
`stantial 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 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.”
`I
`
`A
`
`
`In 2002, Congress enacted the Homeland Security Act,
`116 Stat. 2135. As relevant here, that Act provides that
`the TSA “shall prescribe regulations prohibiting the dis-
`closure of information obtained or developed in carrying
`out security . . . if the Under Secretary decides that dis-
`closing the information would . . . be detrimental to the
`
`
`
`
`
`
`
`

`
`2
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` DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
`
`Opinion of the Court
`security of transportation.” 49 U. S. C. §114(r)(1)(C).
`
`
`Around the same time, the TSA promulgated regula-
`tions prohibiting the unauthorized disclosure of what it
`called “sensitive security information.” 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.” 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 pro-
`tect passenger flights from potential hijackings. See 49
`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 passen-
`ger 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.” 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
`
`
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`

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`3
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` Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
`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.” 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.” 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,” 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,” §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.” 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.” 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.” 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.” Ibid. The
`story also reported that the cancellations were “particularly
`
`
`disturbing to some” because they “coincide[d] with a
`
`
`
`
`
`
`
`

`
`4
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` DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
`
`Opinion of the Court
`new high-level hijacking threat issued by the Department
`
`of Homeland Security.” 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 disclo-
`sure was protected whistleblowing activity under 5
`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.”
`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 “spe-
`cifically prohibited by law,” it must have been “prohibited
`by a statute rather than by a regulation.” Id., at 1308
`(emphasis added). Thus, the issue before the court was
`whether the statute authorizing the TSA’s regulations—
`now codified at 49 U. S. C. §114(r)(1)—“specifically prohib-
`ited” MacLean’s disclosure. 714 F. 3d, at 1308.*
`——————
`*This statute has a complicated history. It was codified at 49 U. S. C.
`§40119(b)(1) when the TSA initially promulgated its regulations on
`
`
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`

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`Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
`The court first held that Section 114(r)(1) was not a
`
`prohibition. The statute did “not expressly prohibit em-
`ployee disclosures,” the court explained, but instead em-
`powered the TSA to “prescribe regulations prohibiting
`disclosure[s]” if the TSA decided that disclosing the infor-
`mation would harm public safety. Id., at 1309. The court
`
`
`therefore concluded that MacLean’s disclosure was prohib-
`ited 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.” 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 particu-
`lar criteria for withholding or refers to particular types of
`matters to be withheld.” 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 deci-
`sion and remanded for a determination of whether Mac-
`Lean’s disclosure met the other requirements under Sec-
`tion 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
`——————
`It was codified at §114(s)(1) when
`sensitive security information.
`
`
` MacLean disclosed the text message to MSNBC. And it is now codified
`at §114(r)(1). The Federal Circuit referred to §40119(b)(1) in its opin-
`ion. Because the statute has remained identical in all relevant re-
`spects, however, we and the parties refer to the current version.
`
`
`
`
`
`
`
`
`
`5
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`

`
`6
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` DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
`
`Opinion of the Court
` “(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 dan-
`ger 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 na-
`tional defense or the conduct of foreign affairs.”
`
`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 dis-
`closure was specifically prohibited by the TSA’s regula-
`
`tions 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 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). Mac-
`Lean does not dispute before this Court that the TSA’s
`regulations prohibited his disclosure regarding the can-
`celed missions. Thus, the question here is whether a
`disclosure that is specifically prohibited by regulation is
`
`law” under Section
`also “specifically prohibited by
`2302(b)(8)(A). (Emphasis added.)
`
`

`
`7
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` Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
`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, Sec-
`tion 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.”
`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 prohib-
`ited by law” rather than “specifically prohibited by law,
`rule, or regulation” suggests that Congress meant to ex-
`clude 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 regula-
`tion . . . if such disclosure is not specifically prohibited by
`law”). 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.
`
`
`
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`

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` DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
`
`Opinion of the Court
`We drew the same inference in Department of Treasury,
`
`
` IRS v. FLRA, 494 U. S. 922 (1990). There, the Govern-
`ment 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.”
`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.” Ibid. That inference is even more compel-
`
`ling 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,” 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 Presi-
`
`dent. 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
`“law” 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
`
`
`
`
`
`
`
`
`
`
`
`8
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`

`
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` Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
` rules and regulations within the word “law.”
`
`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 “law”
`to subsume the TSA’s regulations on sensitive security
`
`
` information.
`First, the Government argues that the word “law” in-
`
`cludes all regulations that have the “force and effect of
`law” (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,”
`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
`
`
`
`
`
`
`
`9
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`

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` 10 DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
`
`
`Opinion of the Court
`
` regulation, if it has the force and effect of law.” 7 U. S. C.
`
` §450c(a) (1976 ed.). Likewise, another federal statute
`
`defined the words “State law” to include “all laws, deci-
`sions, rules, regulations, or other State action having the
`effect of law.” 29 U. S. C. §1144(c)(1) (1976 ed.). As those
`examples show, Congress knew how to distinguish be-
`tween 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 Govern-
`ment 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 pre-
`cisely, 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 exam-
`ple, the Government’s brief accepted that the word “law”
`meant “legislative enactment,” and said that the “only
`dispute” was whether 49 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 “law”] 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 stat-
`ute.” 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 “law”] needs to
`encompass regulations. We’re saying statute.”). Those
`
`
`
`

`
`
`
` 11
`
`
`
`
`
` Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
`concessions reinforce our conclusion that the Govern-
`ment’s proposed interpretations are unpersuasive.
`
`In sum, when 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).
`
`B
`
`We next consider whether MacLean’s disclosure regard-
`ing the canceled missions was “specifically prohibited” by
`
`49 U. S. C. §114(r)(1) itself. As relevant here, that statute
`provides that the TSA “shall prescribe regulations prohib-
`
`iting 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 det-
`
`rimental to the security of transportation.” §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 discre-
`
`
`
`
`
`
`

`
`
`
`
`
`
` 12 DEPARTMENT OF HOMELAND SECURITY v. MACLEAN
`
`
`Opinion of the Court
`tion, viewing it as the almost ministerial task of “identify-
`
`ing whether a particular piece of information falls within
`the scope of Congress’ command.” Post, at 3. But deter-
`mining which documents meet the statutory standard of
`“detrimental to the security of transportation” requires the
`exercise of considerable judgment. For example, the Gov-
`ernment 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 Secre-
`tary’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
`
`“law” 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 Admin-
`istrator, 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.” 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 de-
`gree of discretion” in deciding whether to disclose or with-
`hold 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,
`
`
`
`

`
`
`
` 13
`
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`
`
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`
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`
`
` Cite as: 574 U. S. ____ (2015)
`
`Opinion of the Court
`the TSA’s discretion whether to prohibit disclosure of
`information does not preclude a finding that the infor-
`mation 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
`statute”—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 dis-
`closure by statute regardless of what the agency does. It
`is 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 dis-
`closure of information, the statute did not create a prohibi-
`tion—it gave the TSA the power to create one. And be-
`cause Section 114(r)(1) did not

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