Ousted Air Marshal Gets a Hearing

     (CN) – Whistle-blower laws may protect a federal air marshal who admitted to complaining about the agency’s dress code in an MSNBC interview, the Federal Circuit ruled.
     Robert MacLean allegedly went to the media initially out of dissatisfaction with an agency directive canceling missions from Las Vegas flights.
     MacLean, who became a federal air marshal in 2001, said the Transportation Security Administration had briefed him and others in July 2003 that there was a “‘potential plot’ to hijack U.S. Airliners.”
     “Soon after that briefing, however, the agency sent an unencrypted text message to the marshals’ cell phones canceling all missions on flights from Las Vegas until early August,” the ruling states. “After receiving this directive, Mr. MacLean became concerned that ‘suspension of overnight missions during a hijacking alert created a danger to the flying public.'”
     MacLean said he addressed his supervisor and the Office of Inspector General regarding the directive, but was told “that nothing could be done.”
     “Dissatisfied, Mr. MacLean told an MSNBC reporter about the directive so as to ‘create a controversy resulting in [its] rescission,'” the ruling adds. “MSNBC published an article criticizing the directive, and the agency withdrew it after several members of Congress joined in the criticism.”
     MacLean then appeared on NBC Nightly News in 2004 to further criticize the transportation agency – this time taking aim at the agency’s dress code, which he believed “allowed marshals to be easily identified.”
     “However, someone from the agency recognized his voice,” the ruling states. “During the agency’s subsequent investigation, Mr. MacLean admitted that he revealed the cancellation directive to an MSNBC reporter in 2003. Eventually, Mr. MacLean was removed from his position because his contact with the MSNBC reporter constituted an unauthorized disclosure of sensitive security information (SSI).”
     MacLean challenged the removal before the Merit Systems Protection Board, arguing disclosure of the text message was protected by the Whistleblower Protection Act (WPA).
     The full board held that MacLean’s disclosure fell outside protected whistle-blower activity because it was “specifically prohibited by law.”
     Whistle-blower regulations prohibit disclosure of sensitive security information, the board found.
     An administrative law judge then upheld MacLean’s removal, and the board affirmed, finding that disclosure of the text message could not qualify for whistle-blower protection because it was directly prohibited by the Aviation and Transportation Security Act (ATSA).
     The board also said that “the unauthorized disclosure of SSI was a non-retaliatory reason” for MacLean’s removal.
     MacLean sought review from the Federal Circuit, arguing that the ATSA did not “specifically prohibit” disclosure of the text message.
     A three-judge panel agreed with him last week, vacating and remanding the board’s decision.
     The ATSA provides “only criteria” for withholding information and does not “prohibit” employee conduct under the Whistleblower Act, according to the ruling.
     “We agree with Mr. MacLean that the ATSA does not ‘specifically prohibit’ the disclosure at issue in this case,” Judge Kimberly Moore wrote for the panel. “The ATSA’s plain language does not expressly prohibit employee disclosures, and only empowers the agency to prescribe regulations prohibiting disclosure of SSI ‘if the Secretary (of Transportation) decides disclosing the information would … be detrimental to public safety.’ Thus, the ultimate source of prohibition of Mr. MacLean’s disclosure is not a statute but a regulation, which the parties agree cannot be ‘law’ under the WPA.”
     In a concurring opinion, Judge Evan Wallach said “MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public.”
     “He averred proof that he sought direction from his supervisors before making allegedly protected disclosures,” Wallach wrote. “While I join in the analysis and the result of the majority opinion, I concur to emphasize that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act.”

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