MSPB Ruling Guts Whistleblower Protection Act

Yesterday, Tuesday June 23rd, the U.S. Merit Systems Protection Board (MSPB) issued a landmark ruling against whistleblowers in MacLean v. Department of Homeland Security.
The decision effectively removes any remaining enforcement authority
for the already-discredited Whistleblower Protection Act (WPA).

The
MSPB's decision gives government agencies the power to issue
regulations overriding the free speech rights contained within WPA.

Government Accountability Project (GAP) Legal Director Tom Devine
commented, "Until Congress acts, the Whistleblower Protection Act is
dead. The MacLean decision means government agencies can fire
employees for any disclosure otherwise protected by the WPA. The
decision reduces the WPA to a voluntary guideline that agencies can
cancel at will by issuing blanket gag regulations."

MacLean v. Department of Homeland Security Background

GAP
and the Federal Law Enforcement Officers Association had submitted a
friend of the court brief on Robert MacLean's behalf. MacLean was a
10-year federal law enforcement officer, and U.S. Department of
Homeland Security (DHS) Federal Air Marshal (FAM) with an unblemished
record. In July 2003, he successfully blew the whistle on agency plans
to secretly offset budget shortfalls by eliminating air marshals from
long distance flights in the midst of a terrorism alert over suicide
terrorist hijackings. After public congressional pressure, DHS's plans
were canceled. On April 11, 2006, the agency fired MacLean for using
previously-undesignated Sensitive Security Information (SSI) in the
2003 disclosure. SSI is a blanket category for anything "detrimental to
the security of aviation" - and can be applied to virtually anything.
MacLean's alleged misconduct was entirely "ex post facto": the agency
had not yet issued regulations prohibiting release of SSI when he made
the disclosure. The facts of the case illustrate the stakes for the
public if whistleblowers are silenced.

* In late
July 2003, MacLean received a DHS intelligence warning of an imminent
terrorist suicide hijacking threat. It was so severe that FAMs were
mandated to attend unprecedented, one-on-one threat briefings in their
field office regardless of their duty status. No successful attacks
were carried out, but a subsequent DHS report confirmed the plans.

* In late July 2003, MacLean also learned that due to a budget
shortfall (caused by suspect contract spending), 60 days of FAM
coverage would be canceled from August 2 until the fiscal year ended on
September 30, 2003 for the highest risk, long distance flights, because
they required overnight accommodations. (His concerns later were
confirmed by a March 31, 2004 GAO report.) He protested to a
supervisor, and to three DHS Office of Inspector General field offices,
all of whom declined to act and said he should drop the issue.

* MacLean then disclosed to a media representative the TSA text message
canceling coverage. Other media quickly picked up the story, which
spread and sparked outraged bipartisan congressional protests. Less
than a day after the initial news story, the TSA canceled the plans to
eliminate coverage, publicly explaining that its orders to FAMs had
been "a mistake."

* Almost three years later, in April 2006,
the TSA fired MacLean, specifically because his disclosure was SSI. The
TSA justified its position through an ad hoc order issued on August 31,
2006 (three years after his disclosure - four months after his
termination), that the text message was SSI. When he disclosed the
message, there had been no markings indicating that the information was
classified, SSI, or in any way restricted. It was not sent by secure
means.

The MSPB Decision

For
over three years MacLean has fought for a hearing. On Tuesday, the MSPB
ruled he can have one, but without any help from the Whistleblower
Protection Act. The ruling redefines WPA language giving employees
public free speech rights to disclose information unless it is
"specifically prohibited by law." Since 1978, that has meant
disclosures barred by legislative statute, because when it wrote the
law Congress shrank initial restrictions from disclosures barred by
"law, rule or regulation" to merely those specifically banned by "law."
Its legislative history also defined "law" to mean statute. In 30
years, the issue had appeared in one 1993 decision when the MSPB flatly
rejected the authority of agency regulations to override Congress.

Current Merit Systems Protection Board Chairman Neil McPhie, a Bush
holdover, rewrote the law, and in doing so granted agencies a blank
check to cancel the WPA. In order to reach that result, the Board:

* Ignored the word "specifically" in "specifically prohibited by law,"
passively killing a cornerstone of the statute and paving the way for
blanket gag orders, such as SSI in this case.

* Based its
entire argument on a Supreme Court definition of "law" from an entirely
different context, applying the same definition for permitting
government exercise of authority as for restraining citizen exercise of
right. Other than the word "law," there is no public policy common
ground.

* Explained away inconsistent adjacent WPA language
in which Congress separately shielded disclosures of "law, rule and
regulation" as merely "redundant," and should be extended to free
speech restrictions in the same sentence limited to "law" without any
mention of rules or regulations.

* Rejected uncontested
legislative history language that defined "law" to mean "statutory law
and court interpretation of those statutes [, and] ... not ... to agency
rules and regulations." The Board's reasoning was that Congress only
said it once.

The MacLean decision breaks new
ground in MSPB hostility toward whistleblowers but it is not an
aberration. Since 1978, in cases involving national policy
significance, no whistleblower ever has prevailed against retaliation
involving government misconduct or cover-ups. Since 1978, no employee
has won a decision on the merits in the nation's Washington DC region,
where the most significant abuses of power occur. Indeed, the
Whistleblower Protection Act of 1989 was passed because the MSPB only
had ruled for whistleblowers four times during the 1980s. Since 2000,
the corresponding record of employee victories is three. Chairman
McPhie has ruled against whistleblowers in 44 out of 45 decisions on
the merits since his 2003 arrival.

"There no longer is any
credible debate that the MSPB is unfit as the sole opportunity for
whistleblowers day in court," stated Devine, who added, "Government
managers oppose House-passed legislation that permits jury trials to
enforce whistleblower rights."

Devine added, "This outrageous
decision should be a wake-up call for the Obama administration to
appoint a new MSPB chair and Special Counsel to protect whistleblowers.
It appears Chairman McPhie is seeking a legacy of killing the good
government law he has already crippled. The President's promise of
transparency will be a magnet for cynicism until he appoints merit
system leaders who believe in his policies."

Adding absurdity
to this specious decision, the MSPB initially tried but failed to keep
its decision killing the anti-secrecy law a secret. It initially marked
the whole ruling "Sensitive Security Information." By mistake, however,
the Board posted its ruling on the MSPB Web site anyway - the same SSI
breach for which it approved MacLean's termination when he blew the
whistle on cancellation of Air Marshal coverage during a terrorist
alert. Over the course of 48 hours, the document was moved to a
password protected site, and then reappeared with the SSI markings
removed. There has been no word of upcoming Board resignations or
accountability actions over the "security" breach.