The Merit Systems Protection Board will not rethink its 2009 decision upholding a whistleblower’s firing, even though the Office of Special Counsel said it poses “a substantial risk of chilling would-be whistleblowers.”
Former Air Marshal Robert MacLean in 2003 told the press that the Federal Air Marshals Service was pulling marshals from cross-country flights (because it couldn’t afford hotel rooms), at a time when the nation was on alert for hijackings. The Transportation Security Administration fired him in 2006, and MacLean says they retroactively designated the information he revealed as sensitive security information to justify his firing.
MSPB in 2009 upheld a court decision that backed TSA, but last month the Office of Special Counsel asked MSPB to reconsider. MacLean told Federal Times that MSPB called his attorney Sept. 6 and said it would not overturn its decision. MSPB confirmed to Federal Times it would not reopen the MacLean case, and said it sent his attorney a letter Aug. 31 that said its regulations don’t allow it to reconsider its rulings.
Despite this setback — the latest in a string of them — MacLean said he’s not giving up. He plans to file an appeal with the Federal Circuit Court of Appeals by Sept. 23.
UPDATE: MSPB points out that to be precise, it has decided not to review its July 2011 decision, which denied MacLean’s petition to review its previous 2009 decision that upheld his firing. Which still effectively means MSPB isn’t going to revisit the 2009 decision. MSPB also says it hasn’t issued a formal response to the OSC’s motion in this case.
September 12th, 2011 at 8:12 pm
Who cares? MacLean is not even a real whistleblower.
Facts are stubborn things Says:
September 13th, 2011 at 7:52 am
The article states that “Former Air Marshal Robert MacLean in 2003 told the press that the Federal Air Marshals Service was pulling marshals from cross-country flights (because it couldn’t afford hotel rooms)…”
… and yet:
The DHS Inspector General found that the TSA “gave executive bonuses of $16,477 to 88 of its 116 senior managers in 2003, an amount one-third higher than the bonuses given to executives at any other federal agency.”
Richard Wyeroski Says:
September 13th, 2011 at 10:21 am
Did anyone ever hear the this “IF YOU SEE SOMETHING SAY SOMETHING”
It is used all the time in TSA commercials to our citizens to report possible terrorist activity.
I am sure the next government employee will think twice about reporting fraud waste abuse or criminal activity after what Mr McLean had to go through to protect the lives of the flying public.
Maybe that is the point the MSPB is getting across to government employees!
former FAA Safety Inspector
Edward Jeszka Says:
September 13th, 2011 at 12:44 pm
Did anyone really anticipate MSPB reversing one of their totally inane decisions? Third world nations have better legal protections than are consistently provided by decisions of this inept agency. Mr. MacLean is receiving “justice” doled out in retaliation by crony political hacks. How much corruption will be swept under the rug before someone has the courage to stand up and say “ENOUGH”. It doesn’t appear that anyone on the MSPB has the backbone to do it. That is truly sad.
BJ Davis Says:
September 13th, 2011 at 2:30 pm
MacLean was paid a seven digit figure by MSNBC for his scam. He was not then, nor is he now a true whistleblower. MacLean did not do what he did to protect the public, he saw a means to make money and get that 15 minutes of fading fame.
The MSPB should be revamped and the OSC is just as corrupt. At the end of the day, where do they get their pay checks from? Of course, they are going to give the appearances of due process.
MacLean never deserved the time or attention. He is a self-professed friend of federal management that spearheads retaliation against real whistleblowers.
The real fraud, waste and corruption lies with MacLean and cronies who know the real story that will come forward.
MacLean and attorneys risk court sanctions filing frivolous and material misrepresentations to the court.
September 13th, 2011 at 2:46 pm
Lola – the Office of Special Counsel disagrees.
Morning Smoke: Hiring Private Contractors Wastes Billions, Study Finds « Cosmogenium's Weblog Says:
September 13th, 2011 at 10:48 pm
[...] MSPB Won't Reconsider Air Marshal Whistleblower's FiringStephen Losey, Federal Times [...]
September 14th, 2011 at 12:13 am
Beau, the Office of Special Counsel rejected MacLean’s OSC complaint. They jumped in with this nonsense only because former GAP Director went to work for the OSC, plain and simple. Nothing but cronyism on their part, while they know MacLean has no case and has been lying to everyone for years.
September 14th, 2011 at 7:39 am
Lola – wow. Do you have proof or is this speculation?
Concerned about MSPB Says:
September 14th, 2011 at 12:48 pm
They choose not to, but this Board has the authority to vacate the June 22, 2009 decision (“MacLean I”) issued by the former Neil McPhie / Mary Rose Board. The current Susan Grundmann / Anne Wagner Board knows this as they vacated a McPhie/Rose decision ["Crumpler v. DoD"] a few weeks after McPhie left the Board:
“For the reasons set forth below, we REOPEN the appeal and VACATE the Board’s November 2, 2009 [Crumpler v. DoD] decision.”
To clarify: the current Board’s July 25, 2011 decision (“MacLean II”) was a review of the MSPB regional administrative judge’s May 12, 2010 “initial decision.” In his “petition for review,” MacLean asked this to overturn MacLean I — just as they overturned Crumpler v. DoD.
A precarious quote from Chairman Grundmann’s 2010 annual report:
“In [MacLean I], the Board modified its 1993 Kent decision by eliminating its bright line distinction between a disclosure prohibited by law and a disclosure prohibited by regulation.”
It is safe to assume here that Chairwoman Grundmann criticized former Chairman McPhie for further muddying the law about what is protected when an executive agency’s regulation or rule is violated during the course of whistleblowing, but declined to clarify the law when given the chance.
IRS agent Says:
September 15th, 2011 at 9:20 am
I don’t know the story, but from my own experience and from hearing of similar experiences of countless others, MSPB is a joke and a complete waste of taxpayer dollars. An independent agency is needed since MSPB is just a “rubber stamp” for corruption, nepotism, and complete violation of all laws. It’s very expensive (and harmful) to allow an agency like MSPB to exist. An employee who is victimized by every form of abuse by management does not need to be further victimized at MSPB when their due process rights are completely denied with no accountability as mine were. As a taxpayer, it’s infuriating that we are funding MSPB.
J R Ferguson Says:
September 15th, 2011 at 12:33 pm
Why did it take 3 years to firer this individual for releasing this information. An Air Marshal should have known, “pulling marshals from cross-country flights” for any reason, is sensitive security information. Why isn’t he in jail?
September 15th, 2011 at 5:43 pm
JR – OSC argued that Congress intended to protect those kinds of disclosures of violations of law.
IRS agent Says:
September 17th, 2011 at 10:39 am
We can’t put any trust in OSC – the head of it was removed due to corruption in the past, and even now they don’t allow you to go there if MSPB rules against you (and they do 99% of the time). So there’s no way to win – we need INDEPENDENT OVERSIGHT and these agencies need to be eliminated.
IRS agent Says:
September 18th, 2011 at 2:44 pm
Not only that, MSPB does not even require the agency to submit correct facts. My files contained another agent’s information, memos to the wrong agent, writeup on another agent’s cases, etc… even a backdated memo (supposedly on a meeting, but the meeting had not yet occurred till a month later). MSPB accepted it all as fact and also the misclassification of me as probationary (which is now proven to have been false) – I had no opportunity to show these falsifications since I was illegally misclassified as probationary and denied all my due process rights. So IRS/OPM are allowed to illegally deny all due process rights, even falsify and employee’s files completely, and terminated them suddenly without cause after 18 1/12 years of nothing but excellent evaluations – bump off CPA/MBA’s with 20 years experience to bring in their own families – their own children who are library workers replacing qualified CPA/MBA’s. MSPB should not exist – it wastes an employee’s life savings, their health, and years of their life. There is absolutely no reason for it to exist – if they can’t enforce employee due process rights and career tenure, they don’t deserve to exist. Let’s save taxpayers some money and get rid of MSPB!!!!!
Will NGO politics get in the way of zealously representing a whistleblower in court? | MSPB Watch Says:
February 26th, 2012 at 7:50 pm
[...] cutback was so TSA could save money on hotels for its marshals, at the same time it was handing out bonuses to TSA senior [...]