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MSPB won’t reconsider air marshal whistleblower’s firing

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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.

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