The Project On Government Oversight (POGO) Blog

Key Member of Congress Lends Support to Whistleblower Robert MacLean

By DANA LIEBELSON

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.

A Handy Walkthrough of the Air Marshal Discrimination/Retaliation Report

Source: DHS OIG

By DANA LIEBELSON

If a Washington, DC-based friend told me that her office environment was characterized by "a great deal of tension, mistrust, and dislike," I would buy her a fruity happy hour drink, at the very least. But that is how U.S. Federal Air Marshals at field offices across the country are describing their work atmosphere—according to a new Department of Homeland Security Office of Inspector General (OIG) report—and sadly, my funds are too strapped to pick up a national bar tab.

The OIG investigation began after whistleblowers in Florida alleged to CNN that Federal Air Marshal Service (FAMS) supervisors were ridiculing and discriminating against officers, including displaying a “Jeopardy!”-style game board with derogatory categories. The OIG report was supposed to be released to the public on Thursday. But POGO has obtained a copy of the report, which we are publishing…HERE.

Okay, got the report handy? Don’t have time to read all 100-plus pages? No problem. Here are some highlights: 

Representatives Show Support for Whistleblower Robert MacLean's Final Appeal

By DANA LIEBELSON

MacLean takes oath as a U.S. Border Patrol agent.

POGO has long been a supporter of whistleblower Robert MacLean--for good reason. Thanks to Bob, Americans can feel safer stepping on an airplane. In 2003, the Transportation Security Administration (TSA) attempted to remove air marshals from "high-risk" flights when there was a heightened intelligence warning of hijackings. MacLean, an air marshal himself, disclosed this dangerous cost-cutting plan. As a result, he was fired.

Now, MacLean only has one more chance to appeal the ruling made by the Merit Systems Protection Board (MSPB), which wrongly decided in July that his case did not constitute retaliation. As POGO has pointed out before, this ruling was flawed for several reasons, and MacLean deserves all legal protections afforded to a whistleblower.

Representatives Carolyn Maloney (D-NY) and Dennis Kucinich (D-OH) plan to send a friend of the court brief to the Court of Appeals for the Federal Circuit that defends MacLean’s retaliation claim. POGO is also encouraging other Members of Congress to do the same, and calling on our readers to get in touch with their Members of Congress about this issue.

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.

Robert MacLean: Homeland Security Whistleblower

By NICK SCHWELLENBACH and DANIELLE BRIAN

At the end of July, Robert MacLean learned the outcome of over a year of waiting. He was waiting on a second ruling from the relatively obscure and awkwardly named Merit Systems Protection Board (MSPB, or the “Board”). The three-member Board in Washington, DC, is an administrative quasi-court that handles federal government whistleblower claims of retaliation, among other things. MacLean is a former federal air marshal who blew the whistle in July 2003 on his agency, the Transportation Security Administration, or TSA. After lengthy reviews by the U.S. Court of Appeals for the Ninth Circuit and two by this Board, the first one in 2009, MacLean lost his claim that he was retaliated against.

There are important takeaways from the MSPB’s ruling.

First, the ruling should put to rest any doubts about whether MacLean is a whistleblower. Although he lost, the Board wrote that the TSA does not dispute that MacLean blew the whistle to the media, that his whistleblowing sparked outrage in Congress and stopped what the TSA intended to do that was believed to create a homeland security risk, and that his termination was due to his whistleblowing. MacLean blew the whistle on a TSA plan to reduce air marshal coverage of international and long-distance commercial flights two days after the federal government was circulating warnings of a heightened risk of an Al-Qaeda suicide hijacking plot to exploit a visa and screening loophole—the TSA disputed none of this.

Is Boeing Trying to Have It Both Ways on the 737 Next Generation?

By Nick Schwellenbach

Last week, the Federal Aviation Administration (FAA) issued an emergency airworthiness directive requiring emergency inspections of 175 older model Boeing 737 airplanes, after a six-foot hole that was torn in the ceiling of a Southwest Airlines 737 carrying 118 passengers led to an emergency landing earlier this month. Metal fatigue and cracking led to the hole. Boeing has said it did not expect these problems at this relatively early stage in the 737 Classic’s lifespan (737 Classics are -300/-400/-500 series of the plane). Cracks were found in other 737 Classics since the incident.

In reaction to the discovery of cracks in 737 Classics and the FAA directive, Boeing has said its newer 737s—the 737 Next Generation (the -600/-700/-800/-900 series of the 737)—have a significantly different fuselage and therefore do not need to be subjected to emergency inspections. But Boeing has argued otherwise in a high-profile whistleblower lawsuit. In March, weeks before the Southwest incident, Boeing said that the 737 Next Generation fuselage is “unchanged” from the 737 Classic.

So which is it, Boeing? Is the fuselage of the 737 Next Generation “significantly different” from the 737 Classic as one of your executives told the Wall Street Journal last week? Or is it “unchanged”?

Why Is the TSA Keeping Air Marshal Employment Disputes Under a Veil of Secrecy?

The Transportation Security Administration (TSA) wants a federal air marshal's employment case to be kept under a veil of secrecy. In an October 13 court filing, the TSA claims that fired federal air marshal Manuel V. Alcaraz’s case involves Sensitive Security Information (SSI) and thus the whole case should be sealed because the court filings refer to the names of federal air marshal managers who ordered his removal. The TSA filing with the Merit Systems Protection Board (MSPB)—a government panel that reviews employment disputes, including whistleblower retaliation claims—states “the record is replete with SSI” and “the identity of the Federal Air Marshals (FAMs) who acted with respect to Appellant's conduct and progressive discipline are considered SSI.”  

Alcaraz’s attorney in opposition to TSA’s motion, vigorously rebutted the TSA argument in a court filing. In addition, “there are less intrusive ways to restrict any potential disclosure of the information by utilizing the employee’s initials or some other unique identifier,” wrote Alcaraz’s attorney Michael Baranic, “rather than closing the hearing in its entirety and sealing the record in this matter, particularly when there is no information at issue that could compromise aviation security.”

This isn’t the first attempt by TSA to seal an air marshal's case by citing SSI. In a New York air marshal’s case in December 2008, TSA was successful in sealing the proceedings before the MSPB, according to a fax from a TSA attorney obtained by POGO.

Over in the U.S. District Court for the Eastern District of Kentucky, “federal prosecutors have been largely successful in arguing national security in sealing – and closing the courtroom for hearings and trials – in a half-dozen civil rights lawsuits filed by Erlanger-based air marshals,” according to a Kentucky Enquirer article dated December 13, 2009. Steven Aftergood, who runs Secrecy News for the Federation of American Scientists, told the Enquirer, “sealing the records places the air marshals at a disadvantage by removing one of the few tools available to them – the power of publicity.”

Questions have long swirled around federal government use, and some say abuse, of so-called Controlled Unclassified Information, of which SSI is one type. “The SSI classification should only be used to protect our homeland,” said Sen. Jay Rockefeller (D-WV) in a statement last year. “It should never be used to hide wrongdoing, avoid public embarrassment, or delay the release of information to communities that need it most.”

The TSA’s reasoning in the Alcaraz case is dubious because only his management officials are identified in the case, not flying air marshals whose identities should be kept under wraps as much as possible. In other air marshal cases before the MSPB, names of flying air marshals and even some operational details have made it into the court record without the record getting sealed. For example, in the recently decided Joshua Good case before the MSPB, the unsealed decision gives FAMs' name and flight patterns between London, New York, and Boston.

The TSA’s argument is also hypocritical: the TSA and the Federal Air Marshal Service (FAMS) have themselves advertised names and pictures of their individual managers and flying air marshals on television and on the Internet on numerous occasions.

Whistleblower Office Vindicates FAA Whistleblower, But Questions Remain On Hundreds Of Improperly Closed Cases

The federal Office of Special Counsel (OSC) yesterday announced that it substantiated the findings of Federal Aviation Administration (FAA) whistleblower Robert Spahr.  Spahr, who is an aviation safety inspector, reported to the OSC that the FAA’s flight standards district office in Pittsburgh and the FAA Eastern Division Regional Office violated regulations by failing to take action against three entities regulated by the FAA.

CNN’s Allen Chenoff reports that “Erie Aviation, a repair station operator that services commercial airlines; C.J. Systems, which pilots helicopters for hospitals around the country; and Air Charter Service, an operator of private charter flights,” were the three entities FAA failed to take action against.  Enforcement actions should have been taken in response to mechanical deficiencies and false entries in aircraft logs, according to the OSC.

But questions still remain about OSC’s previous work with whistleblowers, including those at the FAA and Federal Air Marshal Service (the subject of a 2008 POGO report).  Under Scott Bloch, the former Special Counsel who pled guilty to lying to Congress, literally hundreds of whistleblowers’ cases were closed without investigation. 

A few weeks ago, CNN featured another FAA whistleblower in that agency’s Eastern Division who says he’s been a victim of OSC’s dereliction of duty.  Richard Wyeroski, a former FAA safety inspector in the Farmington, N.Y., office, told OSC that his FAA managers did not want a runway incursion incident at Long Island MacArthur Airport reported in order “to keep incursion numbers down.” Runway incursions occur when aircraft are not where they are supposed to be on a runway, and can result in near misses of aircraft and even aircraft collisions.  The development of mechanisms to prevent runway incursions has been on the National Transportation Safety Board’s Most Wanted List for years.

Wyerocki said he “was harassed for reporting this serious runway incursion through the Program Tracking Reporting System” maintained by FAA. 

“Wyeroski says his supervisor also tried to prevent him from earning this aviation inspection certificate and then terminated him in late 2002, falsely claiming Wyeroski had lied on his certificate application,” according to a CNN transcript.

The FAA did not respond to CNN’s request for a comment.  Days after the CNN segment on Wyeroski ran, Rep. Steve Israel, D-N.Y., wrote to the William Reukauf, the Acting Special Counsel, asking for a “full investigation” into Wyeroski’s allegations.

-- Nick Schwellenbach

Did Whistle-Blogging Contribute to Termination at the FAA?

Can blogging get you fired? One now-former Federal Aviation Administration (FAA) attorney, who says he’s blown the whistle and is documenting retaliation on his blog, says the answer may be yes.

David Pardo, an attorney at the FAA, was fired yesterday, according to a post on Monday on his blog, FAA Lawyer Whistleblower.

IG Investigation Spurred by POGO Found Former NRC Commissioner Merrifield Violated Ethics Laws

After raising concerns more than two years ago, POGO has just received hundreds of pages of internal documents, which are a part of a Nuclear Regulatory Commission (NRC) Inspector General investigation, that outline how recently departed Commissioner Jeffrey Merrifield disregarded advice from the NRC’s General Counsel and voted on two matters that “could have potentially” financially benefited three companies—Shaw Group, Westinghouse, and General Electric—during the time he was directly involved in employment negotiations with those companies. The IG investigation found that in the two months before accepting a job created for him at the Shaw Group, Commissioner Merrifield voted both to approve China’s purchase of AP 1000 reactors (in which the Shaw Group had a financial interest) and to change criteria of emergency cooling systems that would directly benefit Westinghouse (of which the Shaw Group owned a 20 percent interest). The Washington Post has already picked up the story.

The IG investigation shows that months before he left his post, Commissioner Merrifield tore down the firewall, which he said he had set up in order to protect himself from potential conflicts of interest, and started making calls and visits to potential employers while he was still a voting Commissioner. The IG determined that Commissioner Merrifield participated in 27 final decisions (votes or opinions on policy proposals that can have binding action) that could have benefited nuclear power plant licensees or licensee contractors and “did not take effective measures to prevent a potential conflict of interest during the last 2 months of his term.” Instead, Commissioner Merrifield designed his own recusal process, which was described in the IG interviews with a former staffer as “weird” and with an industry VP as “odd.” This included verbally informing his staff of recusals but not sharing with them a list of the companies he was recusing himself from voting upon, because as the IG learned when interviewing one of Commissioner Merrifield’s staffers:

The Olympics Are Not Over for Federal Air Marshal Whistleblower

Former federal air marshal Robert MacLean has had to jump over a lot of hurdles to contest his 2006 termination for disclosing the Transportation Security Administration's (TSA) Federal Air Marshals Service's (FAMS) July 2003 plan to eliminate air marshal missions on nonstop, long distance flights for two months.  FAMS's plan to cancel these missions was an attempt to save money on costs associated with air marshals having to sleep in hotel rooms after a long distance mission.

MacLean's termination was sustained by a single charge: that his disclosure was Sensitive Security Information (SSI), an unclassified marking widely used by the TSA after the 9/11 attacks.

MacLean maintains that FAMS had originally sent out its plan in a text message to all nationwide air marshals' non-secure mobile phones, instead of their encrypted PDAs, without SSI markings.  Soon thereafter, DHS issued a terrorist advisory about a possible hijacking.  Concerned about the security implications of FAMS's plan to cut back on air marshal assignments for nonstop, long distance flights, MacLean went to his supervisors and the DHS Inspector General office.  But after his warnings fell on deaf ears, MacLean, who had 14 years of unblemished military and civilian federal service experience, made a disclosure to the media about FAMS's plan.  TSA later designated the information MacLean disclosed as SSI.  (During this time, both the Congressional Research Service (CRS) and the Government Accountability Office (GAO) raised numerous inconsistencies and weaknesses with how TSA applied SSI).

MacLean immediately appealed his removal before the Merit Systems Protection Board (MSPB).  He argued that his 2003 disclosure was protected under the Whistleblower Protection Act (WPA), and that his disclosure could not be retroactively marked as Sensitive Security Information (SSI) over three years later.  But the government argued that the MSPB did not have the jurisdiction to rule if MacLean's disclosure was SSI or not.

MacLean filed an appeal in the U.S. Court of Appeals for the 9th Circuit and waited over two years for its ruling.  This week, the 9th Circuit denied MacLean's petition, in which he had argued that TSA's SSI order violated: (1) the TSA's own regulations, (2) the Whistleblower Protection Act, (3) the Anti-Gag statute, (4) due process, and (5) the rule against retroactive administrative adjudication.  This was no big surprise, as MacLean and his attorneys knew that the "evidentiary standard" was extremely high for TSA's retroactive SSI order to be rescinded.

"This is not over," writes MacLean in an email to POGO.  MacLean will have to refile in the MSPB before October 15, 2008, and argue that disclosure of unclassified information labeling is protected under the Whistleblower Protection Act (WPA), as opposed to classified information labeled Top Secret, Secret, or Confidential.  It is important to note that the government cannot retroactively label classified information.

While the MSPB has an unbelievably awful record of ruling against whistleblowers, MacLean points out that his case may be different, given the sympathetic language in the 9th Circuit's ruling:

MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act and contend that the lack of clarity of the TSA's 2003 'sensitive security information" regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as "sensitive security information.

While Congress has taken some steps to limit the misuse of unclassified information markings such as SSI, POGO and other groups would like to see legislation that prohibits executive agencies like TSA from retroactively marking/labeling information with unclassified information designations such as SSI, Law Enforcement Sensitive (LES), or For Official Use Only (FOUO).

Having worked with MacLean for years, POGO understands what a loss it is for the public to have him no longer serve as a federal air marshal.  We would hate to see another loss at the MSPB for federal employees who speak out when they see fraud, waste, abuse, and negligence in the agencies funded to serve us.

-- Ingrid Drake

Don't Pack the Flak Jacket

Yesterday's Washington Times had a story that frankly made our jaws drop.  We had to check our calendars to make sure it wasn't April 1st.

Audrey Hudson reported that members of the U.S. military traveling on commercial jetliners were being forced to pay excess baggage fees--out of their own pockets!

It's not as if the troops are packing excess baggage because they can't decide whether to take their tennis or golf or scuba gear to their exotic vacation destination.  Their bags are heavy because they're filled with combat boots, body armor, and all of the other gear needed to survive year-long deployments to some of the least hospitable climates on the planet.

The airlines argue that the soldiers can seek reimbursement from the military if they complete the proper paperwork.  POGO would like to see the airline executive who thought it would be a good idea to make soldiers fill out bureaucratic forms in a combat zone.

The folks at Veterans of Foreign Wars are asking airlines to waive luggage fees for soldiers, pointing out that the required paperwork is "a lot to ask when the service member has much more important things on their minds, such as staying alive and keeping those around them alive."  An Army Vet on POGO's staff adds that soldiers are unlikely to carry large sums of money when traveling to a combat zone, and thus may find it difficult or even impossible to pay fees that can reach hundreds of dollars.

As the Times piece noted, "Most major U.S. carriers waive baggage fees for up to two bags for military members traveling under orders."  However, weight limits can also apply--US Airways charges no fee for up to 100 pounds of luggage, while Delta and Northwest allow two bags up to 70 pounds total for free.  Considering that a soldier's gear can easily weight 150 or even 200 pounds, soldiers are bound to be required to pay for that excess weight.

In fact, the airlines should be able to waive luggage fees altogether for these soldiers without breaking the bank.  Our troops are fighting for all of us--let's give them a bit of a break.

UPDATE: The Washington Times reported this morning that American Airlines will no longer charge fees for a third piece of checked baggage for active military personnel.  While this is encouraging news, it is our understanding that the other airlines have not budged on their policies.

Letters to Boeing and the Air Force on Airtech

Earlier this week, POGO sent letters to The Boeing Company and to the Air Force asking them what they were doing in response to a 2006 Army Criminal Investigation Command letter which found that Airtech International Inc. had committed fraud on aerospace manufacturers and engaged in bribery.

-- Nick Schwellenbach