Justice, DHS Lose Round in TSA Whistleblower Case

Appeals court won't reconsider victory for employee who exposed air marshals’ exclusion from flights.

Fresh off of an appeals court victory in a key whistleblower protection case, attorneys for fired Transportation Security Administration civil aviation specialist Robert MacLean called for his reinstatement after a seven-year legal battle that pitted whistleblower protections against agency claims of necessary secrecy.

On Aug. 30, the U.S. Appeals Court for the Federal Circuit rejected a petition from the Justice and Homeland Security departments for a full court review of an April three-judge panel decision backing MacLean for his actions in exposing a 2003 Homeland Security decision to cancel inclusion of federal air marshals on long-distance flights despite rising threats of terrorism against passenger flights. He originally appealed his 2006 termination to the Merit Systems Protections Board, which upheld the agency’s decision to fire him, citing the agency’s need to protect “sensitive security information.”

In a statement on Tuesday, the nonprofit Government Accountability Project, which had defended MacLean along with the Federal Law Enforcement Officers Association, hailed the circuit court’s April decision backing MacLean and called on the government to end its “seven-year vendetta” against him.

“The full federal circuit has reinforced April's victory for whistleblowers,” GAP Legal Director Tom Devine said. “Agency secrecy rules cannot cancel Whistleblower Protection Act free speech rights. Only Congress can restrict their scope, and it must act with specificity. This ruling restored the law's cornerstone. Hopefully, the Justice Department will not ask the Supreme Court for a landmark secrecy ruling that broadly drafted gag orders can cancel the Whistleblower Protection Act.”

MacLean said, “The court finally put a stop to agencies creating brand new and unreviewable secrecy categories in order to scare away employees wishing to expose unclassified wrongdoing.” Thanking the “good government groups” and two dozen lawmakers who backed his case, MacLean said, “If the government is ready to finally end delaying my reinstatement, then I’m ready to begin serving and protecting the public again. If not, I look forward to fighting another seven years or more at the Merit Systems Protection Board or the Supreme Court.”

Justice attorneys had argued that protecting disclosures such as those made by MacLean "eviscerates the Executive [Branch’s] ability to carry out [its airline security] mandate and creates a public safety risk."

Special Counsel Carolyn Lerner said in a statement to Government Executive that the Office of Special Counsel, which also has a role in safeguarding whistleblowers, “was pleased to see the federal circuit’s decision holding that agency secrecy regulations do not trump whistleblower protections for federal employees.”

MacLean, who faced personal bankruptcy after his termination, has been working as a storm restoration contractor.

(Image via BortN66/