MacLean Denied, MSPB Lives Up To Whistleblower-Unfriendly Reputation

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 only good news is that the media has continued to follow MacLean’s case, such as CNN singling him out as one of “Thursday’s intriguing people.”

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

See also:

• Robert MacLean v. Department of Homeland Security (DHS)
• MacLean v. DHS: TSA's Dubious Secrecy Marking Used Against Whistleblower
• Federal Air Marshal Whistleblower Cases Still Up in the Air
• House Subcommittee Supports Air Marshal Whistleblowers

Comments

[Mitcheal Nelson]

Our government just took a huge step in stealing your life, liberty and freedoms. The House and Senate have just passed a Bill to detain U.S. citizens indefinitely without charging you or let you see an attorney, by using the 'war on terror'. This Bill was put forward by John McCain and is worse than the 'Patriot Act'. Both the House and Senate by very big numbers on both sides Democrat and Republican, you can not trust these bureaucrats in D.C. It's a police state we're heading for. This President has already killed American citizens in the name on terror, without 'due process', which is unconstitutional. We can not continue to let this government run roughshod over us, as if our individual rights don't matter!!

[Charlotte Yee]

Mr. Darryl,

A key component of statistical literacy is one's ability to comprehend written analysis. If you look at the quote, it reads, "Franklin Kang in FY 2008 found for the appellant (federal employee) a whopping zero times out of 68." It does NOT read, . . .68 rulings against employees."

Therein, perhaps it may be time to fine tune your special detector, or turn it in for a newer model.

[Doktor Darryl]

Maybe Judge Kang's bull shit detector went off much like mine did with the allegation of 68 rulings against employees. here are the numbers.

Kang, Franklin M.
Dismissed With Prejudice 32 47.1%
Dismissed Without Prejudice 10 14.7%
For Agency 16 23.5%
For Employee Appellant 0.0%
Settled 10 14.7%
TOTAL 68

Not sure how dimissed without prejudice or settled equate to a ruling against the employee.

Given the burden of proof is on the employee and most of these cases were not whistle blower protection cases your logic does not stand the test of factual accuracy.

But when did honesty ever get in the way of pushing one's agenda.

[National Whistleblower Allen Carlton]

Court Upholds Firing of Federal Air Marshal for Disclosing Sensitive Information

To Matthew Harwood on:

http://www.securitymanagement.com/news/court-upholds-firing-federal-air-marshal-disclosing-sensitive-information-007139

http://www.scribd.com/doc/17286921/The-America-Betrayal

http://www.scribd.com/doc/16789205/Complaint-Letter-and-Evidence-to-Department-of-Homeland-Security

CooN by YA(YHVH)
Allen Carlton
National Whistleblower - www.scribd.com/National%20Whistleblower/
Revelation receiver of the Peoples Righteous Kill Defense (PRKD)
Peoples Arm