Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

 Today the Court of Appeals for the Federal Circuit issued a decision in MacLean v. Department of Homeland Security.  In 2003, Robert MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency’s (TSA) plan to remove U.S. air marshals from long distance flights during a heightened terrorist alert.  Mr. MacLean was concerned that the suspension of overnight missions created a danger to the flying public. He complained to his supervisor and to the Office of Inspector General; both responded that they could do nothing. 

Mr. MacLean then gave information to a MSNBC reporter about the TSA’s plan. The reporter published an article criticizing the plan. The TSA withdrew its plan after criticism from the public and members of Congress. The TSA subsequently fired Mr. MacLean. 

A major issue on appeal from the Merit Systems Protection Board (“MSPB”), was whether or not Mr. MacLean was covered under the Whistleblower Protection Act (“WPA”). Specifically, the WPA prohibits individuals in positions of authority from taking a “personnel action” against a government employee when the employee makes a disclosure, which the employee reasonable believes to evidence a “substantial and specific danger to public health and safety, if such disclosure is not specifically prohibited by law.” The Court of Appeals held that MacLean’s disclosure was “not specifically prohibited by law.”

The Court vacated the MSPB decision which upheld Mr. MacLean’s termination and remanded the case back to the MSPB to determine whether MacLean’s “disclosure qualifies for WPA protection.” The MSPB must determine whether Mr. MacLean “reasonable believed” his disclosure evidenced a “substantial and specific danger to public health and safety.”

Read the Court of Appeals decision here. 

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An administrative judge at the Merit Systems Protection Board (MSPB) upheld the illegal termination of former federal air marshal Robert MacLean. Mr. MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency’s (TSA) plan to improperly remove U.S. air marshals from long distance flights during a heightened terrorist alert. The TSA subsequently fired Mr. MacLean in flagrant violation of the Whistleblower Protection Act (WPA). To justify the decision to terminate Mr. MacLean, TSA retroactively labeled his disclosure as Sensitive Security Information. Ever since he was terminated, Mr. MacLean has been fighting for his reinstatement.

Administrative judge Franklin Kang issued the decision. In 2007, Judge Kang ruled in favor of federal employees ZERO times in 71 cases. In 2008, federal employees prevailed ZERO times out of 68 cases. (Thank you to Charlotte Yee and the Project on government Oversight for sharing this information.)

 

This deplorable decision only further highlights the need for full court access for all federal employees, especially those who risk their careers to protect our safety and national security. As we have written before, the MSPB has consistently failed to protect federal employee whistleblowers, and Robert MacLean is one of many who have gone before the MSPB seeking justice, but come up empty handed.

There is legislation pending in Congress that can change this system. The House version of the Whistleblower Protection Enhancement Act (H.R. 1507) contains provisions that would grant federal employees access to federal court and jury trials.

 

Robert MacLean will appeal the administrative judge’s ruling, and continue his fight for reinstatement and justice. We hope he prevails. We also hope the law will change so that national security whistleblowers will have access to the same customary justice that car accident victims have – jury trials.

 

To take action now and send a letter of support for Robert MacLean & H.R. 1507, click here.

 

*Meryl Grenadier (NWC Fellow) drafted this post.

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Hundreds of Transportation Security Officers (TSOs) and their allies rallied today in Washington for the right of these federal employees to have union recognition. Union leaders remembered that many union members gave their lives in the rescue efforts on 9/11, took down the shooter at Ft. Hood, and defend our security every day as pilots, flight attendants and law enforcement officers.  Indeed, we would be more secure if TSOs knew they had protection on the job when they raise safety concerns against management.  The American Federation of Government Employees (AFGE), AFL-CIO, has just filed a petition to represent 40,000 TSOs, and is rallying support for HR 1881 to assure these dedicated public servants the freedom of association, speech, and petition for redress of grievances that are guaranteed in the First Amendment to the Constitution. Pictured here is Amanda Schroeder of AFGE Local 2157 in Portland, Oregon. Some attenders even signed up for the National Whistleblowers Center's Action Alert network to call for passage of HR 1507 and assure all federal employees a right to trials by jury in their whistleblower cases.

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Sen. Harry Reid (D-NV) and other politicians have called on the administration to review the cases of Robert MacLean and Spencer Pickard, according to a story in today's Las Vegas Review-Journal. Both MacLean and Pickard were fired by the Transportation Security Administration (TSA) after going public about shortcomings in TSA's security plans.  Robert MacLean  criticized TSA for grounding all the air marshals, nationwide, during a security alert, to meet a budget goal.  Spencer Pickard criticized TSA for requiring air marshals to meet wardrobe requirements that made them stick out like sore thumbs.  Both cases well demonstrate why we cannot rely on administrative procedures where all the decision makers are appointed by the administration that is being criticized.  Both cases show how public safety will be enhanced if Congress passes the House version of the Whistleblower Protection Enhancement Act (WPEA), HR 1507, and allows jury trials for federal employee whistleblowers.

The Review-Journal article notes how the new administration promised last June that it would review whistleblower cases from the prior administration.  We are still waiting for the outcome of that review.

 

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Congress must enact real whistleblower protections


The Transportation Security Administration (TSA) announced today that it has entered into agreements with the Merit Systems Protection Board (MSPB) and Office of Special Counsel (OSC) to permit TSA employees to appeal whistleblower complaints to the MSPB.


These so-called “enhanced” whistleblower protections for TSA employees are completely illusory and ineffective.  These new TSA procedures provide no more than the inadequate and completely dysfunctional whistleblower appeal rights currently afforded to other federal government workers. 


The OSC’s track record of protecting whistleblowers over the last several years is abysmal.  OSC rules for whistleblowers less than 3% of the time and the head of OSC is under criminal investigation for obstruction of justice. MSPB rarely grants whistleblowers a fair hearing.  Over the last several years MSPB has ruled in favor of whistleblowers less than 5% of the time, and that number is rapidly declining.


In March of 2007, the House of Representatives overwhelmingly passed H.R. 985, “The Whistleblower Protection Enhancement Act of 2007,” by a bi-partisan vote of 331 to 94.  However, H.R. 985 has not been enacted into law and the most important “enhanced” whistleblower protections contained in that bill, such as the right to recover compensatory damages, de novo review and jury trials in federal court, have been stalled in the Senate.


Yesterday, both the House and Senate agreed to strong whistleblower protections in the Consumer Product Safety Improvement Act.  Notably, the Consumer Product Safety whistleblower protections extends to manufacturing employees some of the strongest whistleblower protections in the country, including access to jury trials in federal courts with strong remedies, including reinstatement, backpay, compensatory damages, and attorneys fees.


It is about time for Congress to enact the same strong whistleblower protections for all federal employees (including TSA screeners) that should soon be provided to manufacturing employees under the Consumer Safety Product whistleblower law.

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