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Protecting Whistleblowers since 1977

The MSPB’s Terrible Ruling on Robert MacLean

Tom Devine, May 18, 2010

Picture_2In a May 12 Initial Decision, Merit Systems Protection Board (MSPB) Administrative Judge Franklin Kang upheld the termination of Federal Air Marshal Robert MacLean – a ruling for which Mr. MacLean has been waiting over four years. MacLean’s 2003 whistleblowing disclosure prevented cancelation of all long distance air marshal coverage during a confirmed terrorist hijacking alert. But he was fired for this when, three years after the fact, the Transportation Security Administration (TSA) categorized information in his disclosure as secret Sensitive Security Information (SSI), despite its uncontrolled release and lack of restrictive markings at the time.

The judge agreed, offering that there is “no reason to doubt” MacLean acted to benefit the nation; that his disclosure did not harm the FAMS air safety mission; and that he improved the FAMS presence by restoring coverage during the alert. Nor did the Judge Kang disagree that the information was not marked SSI as required by the same agency regulations Mr. MacLean was accused of violating.

So then, why is Mr. MacLean still fired?

On the immediate level, it is because the AJ accepted every statement of agency officials at face value – literally – and rejected all of MacLean’s as not credible. MacLean is in good company, however. Judge Kang’s track record is 179-0 against employees over the last two years, according to published reports on records released under the Freedom of Information Act to Ms. Charlotte Yee.

GAP will appeal until MacLean achieves justice, or there are no doors left to pound on in the legal system.

That leads to the real reason MacLean lost, however: Under current law, justice has not been available for whistleblowers within the legal system. Judge Kang’s track record is only slightly more hopeless than the norm. Only one whistleblower won a decision on the merits during the entire term of Neil McPhie, the MSPB Chair until very recently. At the Federal Circuit Court of Appeals, the only chance for appellate review, the track record is 3-207 (against whistleblowers) since October 1994, when Congress strengthened the law.

The times may be changing, though, because new MSPB leadership has a lifelong track record of proven expertise and commitment to the merit system. But without restoring a credible rule of law, their good faith will trickle down slowly.

For ten years, GAP has been fighting to restore credible law to defend those who defend the public, so that whistleblowers like MacLean will have “no loophole” rights that trump agency gag orders and are enforced through normal access to court, from jury trials to appellate review. The House passed those rights unanimously in 2007. But Senate action has been blocked procedurally from unanimous consent approval since before Christmas. Without a strong push from the public, whistleblowers could lose their best opportunity for genuine free speech rights.

What You Can Do

1. Demand passage of the Whistleblower Protection Enhancement Act! Add your voice with your Representatives and Senators to the 382 organizations that have signed a letter to the President and congressional leadership. President Obama’s campaign pledge was no different than these citizens’ demand: ‘best practice’ free speech rights for all employees paid by the taxpayers, enforced through normal access to court. The White House has been doing its share, for the first time in history working actively to get strong whistleblower rights. But the progress will remain paralyzed unless Senate and House leadership make its passage a priority, whether or not it is easy procedurally.

Tell your senators and representative to demand that Senate and House leadership make passage of the Whistleblower Protection Enhancement Act consistent with our letter a “must” item before Congress faces the voters. Send them the letter, tell them that you’re in solidarity, and challenge them to make a difference if they’re serious about fighting fraud, waste and abuse. Click here to write your Senators directly.

2. Rally behind Robert MacLean and our community at the National Whistleblower Assembly! Our annual event is scheduled for May 24 and 25 at the Capitol Visitor’s Center. MacLean will be a featured speaker. He deserves all our solidarity and support. Legends of our movement, from Daniel Ellsberg to Frank Serpico, are coming to help push this decade campaign for justice over the top.

Join us not only for solidarity, but to make your voice heard on May 25 in every congressional office that could make a difference. There is no excuse to continue a misrule of law, in which outrages like occurred with Robert MacLean are the norm. Congress has been working on restoring a credible law for ten years. Enough is enough!

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Tom Devine is Legal Director of the Government Accountability Project, the nation's leading whistleblower advocacy organization.