Ruling in TSA Air Marshal Case Hailed by Whistleblower Advocates

An appeals court decision in favor of a Transportation Security Administration whistleblower was welcomed by legal advocacy groups as a development that strengthens the federal Whistleblower Protection Act, which was amended last year.

In one of the government’s longest-running whistleblower controversies, the U.S. Appeals Court for the Federal Circuit on Friday ruled in favor of Robert MacLean, a civil aviation security specialist who was fired by TSA for providing “sensitive security information” to a television news reporter in 2004 after TSA reduced the number of air marshals on flights.

The court held that MacLean’s disclosure was “not specifically prohibited by law,” thus vacating a decision by the Merit Systems Protection Board and remanding the case back to MSPB for a ruling on whether his actions qualify for protection under the Whistleblower Protection Act.

The Government Accountability Project, which represented MacLean, hailed the decision “as a major victory for federal whistleblowers, and an important judicial decision outlining that statutory free speech rights trump conflicting federal agency regulations.”

GAP Legal Director Tom Divine said in a statement, “This victory restores access to justice for a modern, unsung hero whose rights have been out in the cold for seven years. Robert MacLean may well have prevented a more ambitious rerun attack of al Qaeda’s 9/11 attack, when the government was about to go AWOL. Legally, the Federal Circuit restored enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights. Even when delegating authority, Congress cannot give agencies discretion to weaken those rights without specific legislative instruction. Congress may not pass the buck with sweeping delegations that permit agency gag orders. The Act’s Achilles heel has healed.”

The MSPB had argued that Congress had delegated its authority to the Homeland Security secretary, which made the department’s regulations equivalent to statutes, and hence MacLean’s disclosure violated law, making him ineligible for whistleblower protection, according to a GAP summary.

Special Counsel Carolyn Lerner also welcomed the ruling, saying in a statement that “Congress has been very clear that whistleblower protections should not be eroded by agency rules that prohibit disclosure. The court affirmed this principle and OSC will continue to fully implement this important rule of law.”

MacLean issued a statement thanking his advocates with GAP, the Federal Law Enforcement Officers Association, the nonprofit Project on Government Oversight, the Office of Special Counsel and various members of Congress. His case had been taken up by Reps. Elijah Cummings, D-Md., and Carolyn Maloney, D-N.Y., as well as since-retired Rep. Dennis Kucinich, D-Ohio.

“With this decision and the new Whistleblower Protection Enhancement Act, federal workers should now have significantly more confidence to expose wrongdoing without the fear of being marginalized or suffering financial hardship,” MacLean said. “An honest employee with the fortitude to expose corruption should expect to make sacrifices, but no one should have to endure seven or more years of aggravation.”

On Tuesday, Cummings and Maloney issued a joint statement calling the court’s decision “a victory for those of us in Congress who have spent years fighting for whistleblower protections and never intended for agencies to be able to prevent whistleblower disclosures just by setting up their own regulations. Whistleblowers are a critical tool in helping us to ferret out waste, fraud, abuse, and mismanagement.”

Angela Canterbury, POGO’s director of public policy, said, "The federal worker whistleblower law was intended to protect people just like Robert MacLean. He exposed a serious threat to the safety of the flying public and, instead of just commendation, he lost his job for embarrassing his bosses. While this decision does not yet end the nightmare he and his family have endured, it puts him closer than ever to justice. The decision also sets an important precedent that will help many others by preventing agencies from waiving whistleblower protections simply by writing rules on secret information."

Jon Adler, FLEOA national president, called the decision “ long overdue. MacLean was the law enforcement David who stood up to Goliath, and he should be restored to full duty immediately,” he said. “We are optimistic that the MSPB will reconvene and make the just decision in an expeditious manner."

This story was updated to add comment from Reps. Cummings and Maloney; POGO's Angela Canterbury; and FLEOA's Jon Adler.

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