Robert J. MacLean
Born (1970-03-08) March 8, 1970
Torrejón Air Base, Madrid, Spain
Allegiance United States
Service/branch United States Air Force
Years of serviceU.S. Air Force: 1988–1992

United States Border Patrol Agent: 1996-2001

U.S. Federal Air Marshal: 2001-2006, 2015-2019
RankSenior Airman
Unit44th Strategic Missile Wing

Robert J. MacLean (born March 8, 1970, in Torrejon Air Base, Spain) is a former United States Federal Air Marshal and whistleblower.[1]

Early career

MacLean served in the U.S. Air Force from 1988 to 1992. After his discharge, MacLean entered the United States Border Patrol as a border patrol agent. MacLean was recruited by the Federal Aviation Administration's Federal Air Marshal program immediately after the September 11 attacks. MacLean was in the first air marshal class to graduate after the September 11, 2001 attacks. After subsequently hiring a significant number of new air marshals, the FAA program was moved under the new Department of Homeland Security's Transportation Security Administration and called the Federal Air Marshal Service (FAMS).

Whistleblowing

On July 28, 2003, MacLean disclosed to MSNBC a proposed TSA operational plan that he believed would have reduced aviation security: removing air marshals from long distance, nonstop flights to save on hotel costs.[2]

MacLean said he previously brought his concerns to his TSA managers and a Department of Homeland Security Office of Inspector General field agent, but was rebuffed, leading him to make contact with national media. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks, chief Washington correspondent for MSNBC.com.[3][4]

TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, the agency dropped the plan.[5]

TSA investigation and identification

In 2005, MacLean appeared on NBC Nightly News to criticize a TSA dress code that he believed made it too easy to identify air marshals. While the appearance was supposed to be anonymous, MacLean's voice wasn't distorted, and he was identified by TSA officials. MacLean then admitted to being the source of the 2003 disclosure as well.[6]

Firing by TSA and administrative appeals

MacLean was fired by the TSA on April 11, 2006, on the grounds that he disclosed prohibited security information. On August 31, 2006, more than six months after he was fired, the TSA retroactively marked MacLean's July 2003 disclosure as being Sensitive Security Information, an unclassified information category.[7]

MacLean appealed this decision to the Merit Systems Protection Board (MSPB), but after the TSA issued its August 31, 2008 "Final Order on Sensitive Security Information," the agency argued that the MSPB had no jurisdiction to challenge an "Agency Order." The MSPB Administrative Judge dismissed the appeal without prejudice so MacLean could challenge the Agency Order in the United States Court of Appeals for the Ninth Circuit.[8] On September 16, 2008, a Ninth Circuit panel ruled that the Transportation Security Administration was within its authority to retroactively classify the information as SSI, but found that MacLean could contest his termination before the MSPB under the authority of the Whistleblower Protection Act by arguing that he had a "good-faith belief" that the information did not qualify as "sensitive security information."[9]

On June 22, 2009, a full MSPB panel declared that MacLean was not protected under the Whistleblower Protection Act.[10] On May 12, 2010, MSPB administrative law judge Franklin M. Kang issued an Initial Decision to uphold MacLean's removal.[11] MacLean appealed the decision to a 3-member appellate MSPB panel in Washington DC,[12] but on July 25, 2011, the full panel denied all of MacLean's Whistleblower Protection Act defenses and affirmed the TSA's decision to terminate him.

Appellate and Supreme Court decisions

In 2013, a unanimous panel of three United States Court of Appeals for the Federal Circuit judges ruled in favor of MacLean, instructing the MSPB to reassess whether his disclosure qualified for whistleblower protection.[13] The federal government appealed the Federal Circuit's decision to the Supreme Court of the United States.[14] In January 2015, the Supreme Court upheld the Federal Circuit's decision, ruling that MacLean could pursue a whistleblower defense before the MSPB.[15]

Reinstatement and later dismissal

In the wake of the Supreme Court decision, the MSPB remanded McLean's case back to judge Kang for a new hearing, and on May 8, 2015, MacLean was retroactively reinstated by the Department of Homeland Security.[16][17] Kang formally designated MacLean a whistleblower in November 2015.[6] In March 2019 MacLean was fired again by the TSA, on the basis of allegations including inappropriate posts on a message board for air marshals and lying about how he obtained information about potential witnesses against him.[18]

References

  1. ↑ "Whistleblowers May Have a Friend in the Oval Office". The Washington Post. 2008-12-11. Retrieved 2008-12-28.
  2. ↑ "SCOTUS Victory for Air Marshal Whistle-Blower". Courthouse News Service. 2015-01-22. Retrieved 2008-12-28.
  3. ↑ "Whistleblowers hit turbulence; TSA ex-employees say they've been blackballed for revealing problems". The Star-Ledger. 2007-10-14. Archived from the original on 2011-07-23. Retrieved 2007-12-08.
  4. ↑ "Air Marshals Pulled from 'Key Flights'". NBC News. 2003-07-30. Retrieved 2006-10-30.
  5. ↑ "Team Bush Scrubs Plan to Cut Air Marshal Force". Daily News (New York). 2003-07-31. Retrieved 2007-07-11.
  6. 1 2 Maimon, Alan (2016-03-03). "What happens when a whistleblower returns to work after a decade's fight". Washington Post. ISSN 0190-8286. Retrieved 2019-12-19.
  7. ↑ Margasak, Larry (May 10, 2007). "U.S. Labels 2003 Memo 'Sensitive'". Associated Press. Retrieved 2007-05-10.
  8. ↑ "Did O.C. air marshal endanger public, or protect it?". The Orange County Register. 2009-05-15. Archived from the original on 2009-05-21. Retrieved 2009-05-30.
  9. ↑ "MacLean v. Department of Homeland Security" (PDF). United States Court of Appeals for the Ninth Circuit. 2008-09-16. Retrieved 2008-09-16.
  10. ↑ "Air marshal in legal battle". The Orange County Register. 2009-06-26. Archived from the original on 2012-07-10. Retrieved 2009-07-02.
  11. ↑ "Fired air marshal's saga conjures 'Animal Farm,' supporters say". The Orange County Register. 2010-05-19. Retrieved 2010-07-19.
  12. ↑ "The MSPB's Terrible Ruling on Robert MacLean". Government Accountability Project. 2010-05-18. Archived from the original on 2010-07-16. Retrieved 2010-07-19.
  13. ↑ "Appeals Court Questions Firing of Air Marshal Who Blew Whistle". The Wall Street Journal. 2013-04-26. Retrieved 2013-05-02.
  14. ↑ Gershman, Jacob (January 28, 2014). "U.S. Takes Whistleblower Case Against Air Marshal to Supreme Court". The Wall Street Journal. Retrieved 2014-01-29.
  15. ↑ Bravin, Jess (2014-05-19). "Supreme Court to Hear Case on Whistleblower Protection for Air Marshal". The Wall Street Journal. Retrieved 2014-05-24.
  16. ↑ Jansen, Bart (May 14, 2015). "TSA air marshal reinstated after Supreme Court win". USA Today. Retrieved 2015-05-14.
  17. ↑ "Years later, fired air marshal back on public payroll, but what will he do?". The Orange County Register. 2015-05-12. Retrieved 2015-05-24.
  18. ↑ Charles S. Clark (2019-04-09). "TSA Air Marshal Whistleblower Fired for Second Time - Government Executive". Govexec.com. Retrieved 2019-10-01.
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