MSPB Asked to Reopen Whistleblower Case

A previous Federal Legal Corner article examined the plight of Federal Air Marshal Robert MacLean for whom the MSPB had affirmed his removal from the Transportation Security Administration for his disclosure of what the TSA had deemed to be sensitive security information. In Robert MacLean v. Department of Homeland Security, 2011 MSPB 70 (2011), the Board affirmed the removal of MacLean, who had gone to the media with the disclosure that TSA was canceling all “Remain Overnight” missions in early August 2003.

This disclosure came at a time when a potential plot to hijack U.S. airliners had been discovered. MacLean believed that canceling the missions during a hijacking alert created a danger to the flying American public, and was inconsistent with what federal laws required.

The Board ruled that removal of MacLean was proper because the statute governing whistleblowing, 5 U.S.C. § 2302(b)(8), permitted an employee to make a disclosure that the employee reasonably believed evidences a “substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law.” Because in MacLean’s case the disclosure had been prohibited by law, MSPB reasoned, he did not have protected whistleblower status and could be removed.

More recently, the Office of Special Counsel asked the MSPB to reopen its decision. OSC argues that Congress realized that agencies would attempt to water down whistleblower protections as soon as the protections were passed. In response, OSC points out, when Congress was drafting the whistleblower protection provisions, it removed the phrase “rule or regulation,” from the draft, and arrived at the phrase “specifically prohibited by law.” OSC argues that Congress made this change to differentiate between “laws,” which are passed by Congress, and “rules and regulations,” which are promulgated by agencies.

OSC argues that Congress wanted to limit agencies’ ability to craft exceptions to whistleblower protection in this fashion. Further supporting its argument, OSC points to a House Conference Report, during the law’s passage, which states, that the whistleblower protection law “does not refer to agency rules and regulations.” Moreover, OSC points to authority for the President to create exceptions to protected disclosures using executive orders. OSC reasons that if rules and regulations could create exceptions to whistleblower protection, Congress would not have had to carve out this specific exception.

It remains to be seen how the MSPB will receive OSC’s arguments on this important aspect of the rights of whistleblowers.