This week the Federal Circuit Court of Appeals accepted a "friend of the court" or amicus curiae brief in support of Federal Air Marshals (FAM) whistleblower Robert MacLean from three Members of Congress who long have been champions of the Whistleblower Protection Act (WPA). Representatives Elijah Cummings (D-MD), Dennis Kucinich (D-OH) and Carolyn Maloney (D-NY) urged the court:
...to restore a basic premise for merit systems principles, and to restore the statutory infrastructure necessary for the WPA to be viable – that only Congress through exercising its statutory authority, or the President through appropriate Executive Order, can restrict the public free speech rights of government employees to disclose information protected under the WPA, and Congress must act with specificity. An agency's rules and regulations cannot cancel or otherwise modify the right to public freedom of expression codified in the WPA, whether issued at its own initiative, or through derivative authority from a broad congressional directive to manage its information. This principle was a carefully considered, repeatedly reaffirmed cornerstone premise when whistleblower rights were created in the Civil Service Reform Act of 1978.
This congressional advocacy is particularly significant, because Cummings and Maloney are the two most senior, ranking members of the House Oversight and Government Reform Committee
MacLean's appeal has stakes unsurpassed by any whistleblower dispute of recent years – not just for whistleblower decisions, but for public safety as well. The roots of retaliation occurred in 2003, after intelligence agencies confirmed a planned, more ambitious rerun of 9/11 by al-Qaeda. In the midst of unprecedented emergency measures, the Federal Air Marshall Service (FAMS) inexplicably reversed course and canceled all FAM protection for targeted flights.
After getting nowhere working within the bureaucracy, MacLean anonymously blew the whistle to Congress through MSNBC on this mind-boggling FAMS plan. After ensuing congressional outrage, the Transportation Security Administration (TSA), of which FAMS is a part, reversed itself, explained the order was a "mistake" and restoring FAM coverage. But instead of praising MacLean for preventing a tragedy, TSA pursued an investigation into the "leak," and three years later fired MacLean for endangering national security by disclosing "Sensitive Security Information" – in this case the text message canceling coverage, which at the time was unrestricted and unmarked. In fact, the TSA did not even designate the message as SSI until after it fired MacLean for disclosing it. MacLean is represented by GAP and the Federal Law Enforcement Officers Association (FLEOA).
During the first 30 years of statutory whistleblower rights, the termination would have been crudely illegal. Federal workers have the right to directly warn the public about government actions threatening public health and safety, unless the information is classified or its release specifically prohibited by congressional statute. But in MacLean, the Merit Systems Protection Board erased that basic premise, and now an agency can cancel WPA free speech rights by banning public disclosures about its own misconduct.
In the brief, Congress protested that the Board decision violates every rule of statutory construction and ignores unequivocal, authoritative Conference Report final legislative history since 1978 that the provision restricting public disclosures "does not refer to agency rules and regulations." Congressional offices further protested that the MSPB defined "specific" statutory restrictions to include giving "the TSA Administrator boundless discretion to withhold information obtained or developed in carrying out security if disclosure would be 'detrimental to the safety of passengers in air transportation.'"
GAP's direct appeal of MacLean's termination raises broader issues as well. The Board agreed that the whistleblower had acted in good faith to protect the nation and had succeeded, with the only tangible harm the administrative burden for TSA to correct its mistake. Yet the Board also ruled that, independent of whistleblowing, his termination was necessary to promote the efficiency of the service. As explained by the Administrative Judge:
"[T]he agency was compelled to shift resources .... [because, as it explained] 'in light of that disclosure that MacLean made, now they would have to do excessive work to either correct that [mistake] or make some decisions.'"
In other words, it would be more efficient for the nation to be unprotected during a terrorist attack than for the government to engage in the excessive work of correcting its mistake. As an individual who prevented the government from mistakenly going AWOL during a terrorist attack, MacLean had to be fired for government to operate efficiently.
The Board's priorities raise a fundamental question about government's role: Is its mission to serve the public, or itself? MacLean's appeal contends the Board's balance cannot exist with the Code of Ethics for Government Service, which requires federal workers to "[p]ut loyalty to the highest moral principles and to country above loyalty to persons, party or Government Department." None of the MSPB rulings recognized the Code of Ethics' existence, although I, as MacLean's attorney, raised it both to the Administrative Judge and the Board. MacLean's appeal urges the Federal Circuit to clarify its relevance, if any:
This Court should establish whether it serves government efficiency more to shield whether it serves government efficiency more to create a false appearance that it is providing service, compared to correcting a mistake so government actually carries out its stated mission. It should choose whether risks from learning of a government breakdown outweigh benefits from correcting it prior to adverse consequences. The code is on the wall of every government office. If its priorities have no greater significance than wall paper, government employees should know not to take it seriously.
MacLean recently risked his life to defend the public, when he captured a Nashville, Tennessee robber during his post-exile job installing home security systems. He received praise for his heroism. But when MacLean risked his career to defend the public from al-Qaeda and a homeland security bureaucracy asleep at the wheel, he was fired.
No wonder Americans are fed up with government.
Your solidarity can help make a difference for this courageous hero, by signing our citizen petition in support of MacLean. Urge Members of Congress to join the three pioneers in court, and to contact GAP for instructions how to follow through. In addition to GAP's petition, sister organization the Project On Government Oversight has one as well.
Tom Devine is Legal Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.