Washington, D.C.  January 21, 2015.  Today the U.S. Supreme Court ruled that former Air Marshall Robert MacLean was not “specifically prohibited by law” from disclosing information to the press about TSA’s plan to cutback on the number of air marshals during a terrorist alert.  Such a disclosure was against agency regulations.

The Whistleblower Protection Act 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.”    
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Yesterday the Supreme Court heard oral arguments in Department of Homeland Security v. MacLean.  This case arises under the Whistleblower Protection Act. The Whistleblower Protection Act 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 issue before the Court is when a federal statute bars whistleblower from making disclosures that are “specifically prohibited by law,” does this bar also apply to disclosures prohibited by agency regulations?

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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.
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Robert MacLean is a former federal air marshal. During the Summer of 2003, he exposed a plan by the Transportation Security Administration (TSA) to stop all overnight travel by the air marshals to save money on the budget.  This shutdown of air marshal travel came at the same time that the Department of Homeland Security was reporting an active al-Qaeda suicide hijack plan.  MacLean’s courageous disclosure prompted Congressional and public outrage.  In response, TSA reversed its decision, continued air marshal travel, and fired MacLean for making the disclosure.  MacLean also raised concerns about how TSA’s dress code for air marshals made them easy for terrorists to identify.

Yesterday, a House committee heard testimony from the Director of the Federal Air Marshal Service (FAMS), Robert Bray.  Bray told Congressman Bill Pascrell (New Jersey) that it was a problem that his predecessors ignored whistleblower complaints of safety and security problems.  The old management forced the whistleblowers to go to the media. Rep. Pascrell insisted that the TSA should give MacLean and others their jobs back: “pure and simple.”

Joe Davidson reports in today’s Washington Post that Pascrell showed concern about MacLean’s case. MacLean is “still twisting in the wind,” Pascrell told Davidson. “I think it’s very unfair.”

MacLean has posted seven (7) minutes of excerpts of the hearing on YouTube.


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