Representatives Elijah Cummings (D-MD), Carolyn Maloney (D-NY), and Dennis Kucinich (D-OH) have submitted an amicus brief to the U.S. Court of Appeals for the Federal Circuit on behalf of Robert MacLean--a whistleblower who revealed wrongdoing in the Transportation Security Administration (TSA). Cummings, the ranking member of the House Oversight and Government Reform Committee (HOGR) and a long-time champion for whistleblower rights, is the most recent representative to join the cause.
This terrific news comes on the heels of POGO’s recent action alert, which urged supporters to ask their Members of Congress to take a stand for whistleblower protections by supporting what will likely be MacLean’s final appeal.
“Mr. Cummings’ entry is a powerful credibility booster shot, since he is the ranking member of HOGR that has jurisdiction over the Whistleblower Protection Act,” Tom Devine, legal director at the Government Accountability Project (GAP) told POGO.
The brief explicitly defends MacLean’s claim of retaliation. MacLean is a former federal air marshal who blew the whistle on a TSA plan to reduce air marshal coverage of high-risk flights, even though the government had just warned of a higher risk of hijackings.
Thanks to MacLean, Americans could feel safer on an airplane—but he was fired, nonetheless. Then, the Merit Systems Protection Board, a quasi-judicial panel that hears cases of whistleblower retaliation (among other things), ruled in July that MacLean’s case did not constitute retaliation. POGO pointed out that this ruling was troubling for several reasons. As we later described:
MacLean was retaliated against in part because of a policy loophole that essentially amounts to ex post facto law. Like many whistleblowers, MacLean tried to make the disclosure inside his agency but was rebuffed, so he went to the press. Three years later, TSA marked his disclosure—which was an agency-wide, unencrypted text message—as Sensitive Security Information (SSI). TSA then retroactively charged MacLean for mishandling this newly-marked text message by delivering it to the media.
MacLean is now facing his appeal before the Federal Circuit. He filed his opening brief on March 9, and the Representatives filed the friend-of-court brief ten days later. Now, he is waiting for the Department of Justice to respond by April 9, or ask for an extension.
“If the MSPB’s decision [on my case] is affirmed, it will set a precedent that agencies can use any of their own gag rules or regulations at any time to have a whistleblower blackballed or fired,” MacLean told POGO.
MacLean said that he was pleased to see Cummings sign on to the brief, but he also expressed disappointment in the other Members of Congress who initially expressed outrage over TSA’s dangerous plan and supported MacLean’s actions publicly—but did not sign on to the brief. Devine also pointed out that even though Cummings addition to the brief lends credibility, there is question whether it will make a difference, given that the Federal Circuit has ruled against whistleblowers 220-3 since October 1994. Still—that doesn’t make it right to rule against MacLean.
According to the amicus:
Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI (sensitive security information) and therefore should not be disclosed...rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual’s employment.
Dana Liebelson is POGO's Beth Daley Impact Fellow.
Image from the U.S. Court of Appeals for the Federal Circuit website.