Whistleblowing Air Marshal Robert MacLean's Case Gets New Life

By William Peacock, Esq. on April 26, 2013 | Last updated on March 21, 2019

Robert MacLean became a Federal Air Marshal in 2001. In 2003, the Marshals received word of a potential hijacking plot. Unsurprisingly enough, because the Transportation Security Administration (TSA) fails at everything, they botched the response. Because of a budget shortfall, they cancelled all missions on certain flights.

Terror/hijacking alert? Meh.

MacLean discussed his concerns through the proper channels, but nothing was done. So he did what he thought was best: leak the story to the press.

political cartoon

After he again went to the press, this time concerned that the dress code regulations made Air Marshals easy to spot on a plane, someone in the agency recognized his voice. Eventually, that led back to the initial leak and led to MacLean's termination.

Note to MacLean: you can disagree with the family in private, but you never take sides against the family in public. Then again, this was a matter of public safety.

Most of the Federal Circuit's ruling rehashed MacLean's previous losing arguments. Much like any good hero story in Hollywood, the guy with the public's interests at heart had to face adversity before triumph.

Though the information on the TSA's response to the hijacking alert wasn't classified until after it was leaked by MacLean, his due process argument failed, as he signed a non-disclosure agreement that covered this type of information.

He also argued that the punishment didn't fit the crime. Other Marshals had disclosed similar information for less worthy reasons (personal rather than public interests) and weren't fired. However, the other disclosures regarded single flights rather than system-wide plans and the other Marshals showed remorse.

If you've ever worked with employment law, there should be a single word still burning in the back of your mind: whistleblower.

The Whistleblower Protection Act was MacLean's last-ditch effort. It prohibits retaliation "because of any disclosure of information by an employee ... which the employee ... reasonably believes evidences ... a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law ..."

The confidentiality provision used to fire MacLean was a regulation, not a law. However, the Aviation and Transportation Security Act (ATSA), the enabling statute that allows that regulation, prohibits disclosure of information "if the Secretary of Transportation decides
disclosing the information would ... be detrimental to transportation safety."

That sounds like a law prohibiting disclosure. However, according to the Federal Circuit, it doesn't do so with sufficient specificity to meet the WPA's requirements.

It's a happy ending for the hero - almost.

The case is remanded to the Merit Systems Protection Board for further fact-finding. For example, the Board must determine that MacLean reasonably believed that the information disclosed evidence a public safety hazard.

Judge Wallach certainly thinks so. His cursory concurrence states,

"Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public ... I concur to emphasize that the facts ... allege conduct at the core of the Whistleblower Protection Act."

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