On Monday, the Merit Systems Protection Board (MSPB) issued a decision once again denying whistleblower protection to a courageous federal employee. In July 2003, U.S. Federal Air Marshal Robert MacLean blew the whistle on the Transportation Security Administration’s (TSA) plans to remove air marshals from long distance flights during the height of a terrorist alert in order to save money. Congressional outrage the day after MacLean’s disclosure prevented the TSA from implementing the plan and the security of long distance flights was never compromised. On August 31, 2006, over four months after terminating MacLean and over three years after MacLean’s disclosure the TSA issued a regulation labeling his disclosure as Sensitive Security Information (sensitive but unclassified information).
One of the issues addressed by the MSPB was whether a disclosure of information that is Sensitive Security Information (SSI) can be a disclosure protected by the Whistleblower Protection Act. MacLean argued that the exclusion from whistleblower protection for disclosures that are “prohibited by law or Executive Order” only applies to disclosures not allowed by “statutes and court interpretations of statutes.” He argued that since the retroactive prohibition on disclosing the information was only an agency regulation, not a law, he was entitled to whistleblower protection. Unfortunately, the MSPB did not agree with MacLean. The MSPB found that a “disclosure in violation of the regulations governing SSI” is within the meaning of “prohibited by law” and “thus cannot give rise to whistleblower protection.”
It is outrageous that the MSPB has one again failed to protect a federal employee who was simply safeguarding the health and safety of all Americans. Federal employees who already risk their careers to expose threats to public health and safety now risk having their agency retroactively relabel their disclosure and strip them of what little whistleblower protection they do have. As stated by NWC Executive Director, “it is deplorable that the men and women on the front lines of the war against terrorism who are trying to prevent the next 9/11 get such shabby treatment under the law.”
This decision is exactly why Congress needs to pass amendments to the Whistleblower Protection Act (H.R. 1507) giving all federal employees court access and a right to a jury trials. Federal employees, including national security employees, need to have the option to appeal the MSPB decision.