Yesterday, the Merit Systems Protection Board (MSPB) ruled to deny whistleblower Robert MacLean’s claim that he was fired from his job as a federal air marshal for exercising his right to protected speech. (In 2003, MacLean tried to blow the whistle within the Department of Homeland Security (DHS) on an attempt to remove air marshal coverage of "high-risk" flights amidst heightened warnings based on intelligence that terrorists were planning on hijacking planes and flying them into U.S. East Coast targets—a specific violation of the Aviation & Transportation Security Act of 2001.)
Despite MacLean providing the internal affairs investigators with more information than they initially sought in 2005, and agreeing to a voluntary polygraph examination which the investigators no longer considered necessary, regional administrative judge Franklin Kang wrote that MacLean was "evasive, nuanced, and inconsistent" in his hearing that occurred more than six years after his July 2003 disclosure. Not the Department of Justice lawyers, U.S. 9th Circuit Court of Appeals judges, MSPB Member Mary Rose, nor former MSPB Chairman Neil McPhie ever challenged MacLean's credibility in their fillings.
Given the MSPB’s record of ruling against whistleblowers, we were not terribly surprised by this ruling, even though MacLean had a good case, and a great lawyer, Tom Devine from the Government Accountability Project (GAP).
This decision is also not such a surprise given the record of MacLean’s judge, Franklin Kang. A citizen watchdog of the MSPB, Charlotte Yee, writes about the findings of a Freedom of Information Act (FOIA) request that she filed:
"Franklin Kang in FY 2008 found for the appellant (federal employee) a whopping zero times out of 68. Well, he hasn’t changed much in FY 2009....
...In FY 2007 and using the same criteria as FY 2008, Kang found FOR the employee in ZERO of 71 cases — a perfect two-year record of NO decisions in favor of the appellant.
Readers can find the original data files provided by MSPB in its FOIA grant [here],"
The story is not over, as MacLean plans to appeal this decision to the full MSPB in Washington, DC. This too is no surprise, coming from someone as persevering and focused as MacLean. Two of the three on this panel have recently been appointed by President Obama, which we hope could mean "change."
-- Ingrid Drake