The Office of Special Counsel on Thursday said the Merit Systems Protection Board should overturn its 2009 decision upholding an air marshal's firing, saying the decision poses "a substantial risk of chilling would-be whistleblowers."
"Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [sensitive security information] and therefore should not be disclosed," Special Counsel Carolyn Lerner wrote in an amicus curiae brief to MSPB supporting former air marshal Robert MacLean. "Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual's employment."
MacLean was fired for telling a reporter in 2003 that the Federal Air Marshals Service planned to cancel air marshals' cross-country trips, at a time when the agency was on alert for possible hijackings. MacLean blew the whistle because he felt FAMS' decision endangered the public by keeping air marshals off the type of nonstop flights used by the Sept. 11 hijackers. He said his supervisor told him FAMS pulled back on those long-haul flights because the agency couldn't afford hotel rooms.
MacLean admitted during an internal investigation that he spoke to the media, and he was fired in April 2006. In his 2006 lawsuit challenging his firing, MacLean said the Transportation Security Administration, which now oversees FAMS, retroactively designated the information he revealed as SSI in August 2006, after he was fired. SSI is information that the government says is sensitive, but not officially classified.
MacLean filed the suit in 9th U.S. Circuit Court of Appeals based in San Francisco, which ruled in favor of TSA in September 2008. MacLean then filed another complaint with MSPB.
MSPB in 2009 ruled that the information was properly designated as SSI and declined to review MacLean's case, thus effectively upholding his firing. Whistle-blower advocacy groups denounced that decision.
But OSC's Lerner said MSPB improperly expanded a narrow exception to whistle-blower protection rules when it upheld MacLean's firing. She said that when Congress spelled out what revelations would be excepted from whistle-blower protections, it specifically did not include rules and regulations of the kind MacLean revealed. Because the information MacLean revealed was not specifically prohibited by the Civil Service Reform Act, Lerner said TSA committed a prohibited personnel practice by firing him.
"Congress intentionally omitted agency regulations from this narrow exception in order to preclude agencies from weakening CSRA whistleblower protections," Lerner said.
Lerner's decision only recommends but does not require MSPB to overturn its previous decision. In an interview with Federal Times, MacLean said he isn't getting his hopes up that MSPB will change its mind, and is still planning to appeal the board's decision to the U.S. Court of Appeals for the Federal Circuit by Sept. 25.
"This [decision] is the only vindication I've gotten throughout this whole case," MacLean said.
MacLean, who now occasionally works as a bodyguard in California, said he hasn't been able to find another law enforcement job since he was fired. He wants his name to be cleared so he can work again at the local level. MacLean is also a former Border Patrol agent and served in the Air Force.
"I was absolutely blackballed" because of the firing, MacLean said. "Nobody would touch me."
MSPB said Friday it had no comment on OSC's filing.