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Air Marshal Whistleblower Wins Job Restoration With Back Pay

Merit Systems Protection Board backs MacLean over the Homeland Security Department.

Twelve years after he first went out on a limb to report a let-up in Transportation Security Administration flight protections, fired air marshal Robert MacLean on Thursday learned details of a victory from the Merit Systems Protection Board setting the stage for full restoration of his job and back pay.

The Supreme Court in January ruled MacLean was engaged in a legitimate exercise of whistleblowing, but that ruling did not guarantee him his job back. Merit Systems Protection Board Administrative Judge Franklin Kang in a Nov. 3 ruling just released to MacLean, however, reversed the Homeland Security Department’s earlier administrative judge victory.

The judge found an agency rule merits the same status as a law in susceptibility to challenge by whistleblowers, and ordered DHS to cancel MacLean’s removal and retroactively restore his pay with interest, as well as “consequential relief.” That decision will become final on Dec. 8, unless DHS appeals.

MacLean, a civil aviation security specialist, has been working in the storm window business and with whistleblower advocates since he was fired in 2006 for providing “sensitive security information” to a television news reporter in 2004 after TSA reduced the number of air marshals on flights.

MacLean told Government Executive his case is “far from over. TSA has argued that my spotless and ‘exemplary’ record -- per its only MSPB hearing witness and my deciding official who ordered my removal -- is not worthy of a single lost promotion. Most of those hired with me in October 2001 have been promoted at least twice,” he said. “If I lose this round, the agency’s highest performers, with the most credibility and responsibility, will choose advancement over reporting wrongdoing.”

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