Federal employees need to be free to speak out against injustice

Robert MacLean
Robert J. MacLean, circa 1988

On January 21 2015, the Supreme Court of the United States ruled on a case, The Department of Homeland Security vs MacLean.  It ruled in favor of whistleblower, Robert J. MacLean, after he called a reporter about TSA policy changes. Mr. MacLean had gone to several superiors regarding these changes, repeatedly receiving unsatisfactory responses, before giving up and calling the media. But we’re getting ahead of ourselves.

Robert MacLean is an Air Force veteran who served from 1988-1992. After his discharge, he worked for the Border Patrol for six years. He was recruited by Homeland Security after the 9/11 attacks and was trained to be an Air Marshall. The TSA was folded into the Homeland Security Department and called The Federal Air Marshall Service.

In July of 2003, the TSA briefed their Air Marshals, including MacLean, about potential terrorist threats. A few days later, TSA sent out an unencrypted text via government phone, stating that all overnight flights were grounded, especially if it required an Air Marshall to stay in a hotel. This had nothing to do with public safety, it was due to budget cuts.

One of the airports was Las Vegas’ McCarren airport. MacClean, based in Las Vegas, thought that during a heightened hijacking threat, grounding the flights was risky, dangerous, and most concerning, illegal. This was when MacLean reached out to his managers, even going so far as to contact the Department of Homeland Security’s Inspector General. But his concerns were rebuffed at every turn.

Weeks after his disclosure, MacLean dropped his anonymity and contacted an NBC reporter to inform them that the TSA was shifting Air Marshals around. Furthermore, they were implying terror threats when none were apparent and endangering the public just to meet their budget cuts. Basically the TSA was saving a few bucks under the cover of inconveniencing hundreds of people, while scaring more than a few of them quite badly.

Unsurprisingly, MacClean was fired on April 11, 2006, once it was determined he was the whistleblower.  So, he appealed to the Merit Systems Appeal Board, and founded the Federal Law Enforcement Officers Association’s Federal Air Marshal Service agency chapter, where he would become Executive Vice President.

On August 31, 2008, the TSA issued its Final Order on Sensitive Security Information. They argued that there was no jurisdiction to challenge an “Agency Order.” While the TSA had marked McLean’s July 2003 disclosure as being Sensitive Security Information, an unclassified information category, they’d done so retroactively, some six months after issuing their order. Hmmm.

An Administrative Law Judge dismissed the appeal and MacLean to his case were off to the 9th District Federal Court. That court agreed with MacLean, but that was in turn appealed, and the case ended up in front of the Supreme Court.

MacLean argued that protection was needed for employees who disclose information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” The Supreme Court agreed with McClean stating:

“With regard to the statutory language, the Board concluded that inclusion of the phrase “specifically prohibited by law” following other statutory language referring to “a violation of any law, rule, or regulation,” indicated that the term ‘law’ was not intended to encompass rules and regulations.” ~ 56 M.S.P.R. at 542.

We do not find that this distinction evidences a clear showing of legislative intent. The differing grammatical structures of the phrases are not compatible.”

Robert MacLeanWhat this means is that when the Homeland Security Act was established it did not include the “rules and regulations” the TSA claimed MacLean had violated. The 9th Circuit and SCOTUS did not believe that McLean had broken any laws. Regulations are not laws according to what was covered under the “Whistleblowers Act”.

The Supreme Court stated in its decision:

“Congress’s choice to say “specifically prohibited by law,” instead of “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations.”

The SCOTUS then went on to say:

The Government argues that providing whistleblower protection to individuals like MacLean would “gravely endanger public safety” by making the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA’s 60,000 employees.

Those concerns are legitimate, but they must be addressed by Congress or the President, rather than by this Court.”

This clarified a lot about what the the Homeland Security Act actually says. As the TSA is ruled by Homeland Security, they were unable to argue against it, and had to comply by the very regulations they tried to nail MacLean with.

While this may come off as dry legal-speak, MacLean’s case is important for everyone. This clarification of the Supreme Court is a victory for all those who would step forward. Defining what information falls under the Whistleblower Protection Act help all Americans speak out against injustice, no matter where it may be found.

Hi everyone! I am a prior litigation paralegal and graduate of the UCLA paralegal program. My undergraduate studies were at University of Nevada, Las Vegas majoring in Sociology and minoring in Business. Adding law heightened my analytical skills of legal issues, social issues and I worked on several high profile class action cases against BMW; Microsoft; General Motors; 24 Hour Fitness; Airborne vitamin supplement and several other class action cases that were litigated U.S. Federal Courts. I love writing about political and consumer protection issues and proud to be a contributor for Quietmike.org.

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