May 13th, 2010
02:26 AM ET

Judge upholds firing of federal air marshal

The Transportation Security Administration was within its rights when it fired a federal air marshal for leaking sensitive information to the media, an administrative judge has ruled.

Robert MacLean was fired in 2006, two years after he told an MSNBC reporter that the agency planned to remove air marshals from flights that required costly overnight hotels. The disclosure embarrassed the agency, coming only days after the government had sent out a warning about planned terror attacks on U.S. aircraft.

The MSNBC report ignited an immediate firestorm on Capitol Hill by lawmakers demanding that the air marshal coverage be restored. The agency said the leaked text message did not reflect a final decision of the director. Ultimately, no overnight missions were cancelled.

When MacLean's involvement in the disclosure became known, he was fired for "unauthorized release of sensitive security information."

In the years since the firing, MacLean has fought to regain his position, winning the support of whistleblower protection groups while filing accusations of improprieties against high-level Federal Air Marshal Service officials.

In recent weeks, attorneys for MacLean and the TSA have quietly been negotiating a settlement. But Wednesday's ruling by a Merit System Protection Board administrative judge will likely kill chances of a reconciliation, said Jon Adler, president of the Federal Law Enforcement Officers Association.

Administrative Judge Franklin M. Kang wrote in his opinion that he found MacLean's testimony to be "evasive, nuanced, and inconsistent." Kang said MacLean's claims that he did not believe the information to be sensitive security information because it came through an unencrypted cell phone were "inconsistent with his own testimony, and improbable under these circumstances."

MacLean said he will appeal the administrative judge's decision to the three-member Merit System Protection Board, and hopes the members will see a suspension, and not termination, as the appropriate punishment for his actions.

MacLean's attorney, Tom Devine of the Government Accountability Project, said Wednesday night he had not studied the judge's decision, but said it is not unusual for whistleblowers to lose cases before the MSPB.

"The full MSPB has impressive new leadership and this will be a significant test case as to whether the times have changed for whistleblowers," he said. "We'll keep appealing this decision until Mr. MacLean achieves justices, until there are no doors left to pound on in the justice system."

The leader of an association representing air marshals called Wednesday's decision "unconscionable."

"It's a resurrection of the Animal Farm philosophy: Some are more equal than others," said Jon Adler, national president of the Federal Law Enforcement Officers Association. Adler said the TSA has excused misconduct by high-ranking members of the agency while harshly punishing misconduct by the rank-and-file.

"Bob MacLean should be put back to work," Adler said. "He was well intended."

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soundoff (15 Responses)
  1. jen

    How disturbing! I as a tax payer certainly like to know where the $$$$$ goes! I think this agent did the right thing. The press could help him (and us, and themselves) more by putting a story like this on front page! What American citizen doesn't love a whistleblower? An anti-patriotic judge like Franklin Kang should be unbenched. The day we as a nation stop supporting the reporting of truth -YELLING it loudly from rooftops- is the day we all die (possibly in flight).
    And, why the heck are hotels even charging the agency for the rooms? Isn't the safety of their guests more important than a few bucks? Again- corporations don't even have to give a response while this good man loses everything. Hey CNN- couldn't you dig a little deeper and question the hotel industry about their policy for active-duty agents? Maybe it's all smoke screen for the agency downsizing? I guess we'll never know , thanks media. Maybe one of the ireporters is on it?

    May 13, 2010 at 8:40 am | Report abuse | Reply
  2. Xena

    The sad story is... no one cares unless and until it effects or affects you directly. You only have to read about what is and has been going on in a certain agency to realize just how screwed up, lopped sided, and how unfairly "senior" management is treated when they commit crimes vs when lower ranked employees commit crimes. EEO cases are buried... unfair treatment happens "all" of the time... no office is on the same page... tax dollars are wasted... the agency is ran by the industry, not the US Govt... management treats EEOC victims like dirt... one day it will ALL come out. Of course, by then the dirt bags will have retired on their big US taxpayer salary. The USSS good OLD boys have been, continue to, and are taking care of each other at taxpayer expense and to other great employees expense. Do your own research, and then contact your senators, etc. and DEMAND they fix broken agencies.

    May 13, 2010 at 8:55 am | Report abuse | Reply
  3. Richard Wyeroski

    This is a very unfair decision by the MSPB judge. Only 2% of whistleblowers win in MSPB court, how sick is that? A decision like this hurts everyone and only weakens the government to be effective in what they do! MSPB judges must be investigated and replaced to bring justice back into our system

    May 13, 2010 at 9:44 am | Report abuse | Reply
  4. V

    There are not air marshalls on every flight. Currently there isn't a budget for it. Until there is, they need to make their budget last as far as possible.

    I don't know how expensive these hotels are that they are talking about, but it might be a considerable expense, significantly reducing the number of flights that can be watched.

    The reason not having an air marshall on each flight still affords some protection (and reassurance) is because we don't know which flights have air marshalls and which don't. The problem with his 'whistle-blowing' is giving our enemies more information to predict which flights don't have air marshalls.

    I do like the earlier posters idea that they should reach out to these expensive hotel and explain how helpful our air marshalls are for getting our tourist dollars to them... Unless telling the hotels who is an air marshall is also an issue?

    May 13, 2010 at 10:14 am | Report abuse | Reply
  5. Captain D

    Truth be told, the entire Air Marshal program is a big waste of money. The agency needs to be disbanded. The have the highest attrition rate of any federal law enforcement agency because the job is just too boring for any serious-minded law enforcement officer to endure. It's like being a professional first class passenger.

    They are supposed to be using these sophisticated systems to determine which flights are the highest risk and then assigning air marshals to these flights but we all know that the flights where they were most needed were not covered. The only thing they have done since the re-creation of the program is to kill a mentally disturbed man on a jet bridge in Miami.

    There are enough federal agents traveling throughout the air transportation system to cover flights. All federal law enforcement officers should be given additional training on how to shoot onboard an airplane and effect arrests onboard aircraft and let them be the air marshals when they fly. This coupled with the all volunteer force of Federal Flight Deck Officers is all that is required to protect our jetliners. It can be done and wouldn't add a dime of cost to the federal budget since these people's salaries are already accounted for and the Federal Flight Deck Officers are an all volunteer force who, incidentally, comprise the largest Federal Law Enforcement Agency in the country.

    Scrap the Air Marshals. The job is boring and unnecessary. They are trying to create things for these guys to do like the VIPER program. Complete and utter nonsense. Sending Air Marshals out on buses, boats and trains in the Visible Intermodal Protection and Response force just so they have something to do besides their boring jobs as professional passengers is just another way to justify the huge waste of tax payers dollars that has become the TSA.

    May 13, 2010 at 12:48 pm | Report abuse | Reply
    • CP23

      A serious- minded pilot would never fly for the airlines, its just too boring, you don't do anything for youself.
      Airline pilots kill hundreds of people at a time, some are even mentally disturbed.
      Airline pilots should volunteer to fly for no compensation when the company determines they could use them, for example repositioning flights. They have already been paid.
      Absolutley ridiculous, right? Yes and so is your perception of what's going on.
      Want to save some real taxpayer dollars? Have the government stop catering to the airlines.

      P.S. Federal Flight Deck Officers are not Law Enforcement Officers. Federal Airmarshals are.

      August 5, 2010 at 3:34 pm | Report abuse |
    • Xena

      Capt D- The only reason the FFDO program is in around, is because of politics. As we all know, FFDO's are not law enforcement and the program and certain FFDO's have "issues." That aside, the FAMS can and should cut money from its budget. Why, as an example, does TSA waste our tax dollars by sending FAM's and a big booth to the IACP conference? Those 4-5 FAM's could be on a flight. Do you really think a Chief of Police cares what FAM's do in flight? Also, how many FAM's are "ground-based." They walk and sit around airports all day. What a waste of my tax dollars. Most TSA offices have Inspectors (who a lot are retired feds and non-fed law enforcement) who are in and around the airports all the time. Why not train them up, and make the federal LEO's? Then we can get more out of our tax dollars. I agree that TSA is one of the biggest and most dysfunctional federal organizations there is. The USSS has taken over the FAM's and most LE positions, to the point where LE positions which open up are saved for USSS buddies. Anyway, 8 and a hlf years of crap in TSA, and it is still going strong?

      October 31, 2010 at 11:49 am | Report abuse |
  6. Gabe Bruno

    Bob MacLean's career and life are being destroyed by an Administrative Law system that amounts to little more than repeatedly rubber stamping an agency action by play actors. An examination of the facts in a REAL courtroom by a jury would have resulted in a decision that protected MacLean and the rest of us that want effective air security, not theatre.

    May 13, 2010 at 3:14 pm | Report abuse | Reply
    • Xena

      Gabe- Has the person and or persons who sent the initial text (later "classified" as SSI) which was not secured per SSI policy been fired? If not, WHY NOT? Has the person and or persons who ILLEGALLY conducted surveillance (and had her information ran through govt databases) of the girlfriend of a FAM been FIRED? HAS that same FAM been charged with misuse of govt property, etc? HAS the Chicago FAM that emailed a picture of his penis to a barely legal female been fired? HAS the FAM range master who discriminated (Per an EEOC Judge's ruling) against a female FAM, AND THEN A YEAR LATER discriminated again against another female FAM been fired or disciplined? AND... why would TSA put individuals in SAC positions known to have discriminated against others?

      October 31, 2010 at 11:59 am | Report abuse |
  7. Government Accountability is a Citizen's Responsibility

    From the Project On Government Oversight's (POGO) website homepage today:

    "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 FOIA 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]"

    May 14, 2010 at 2:28 pm | Report abuse | Reply
  8. sam

    A whistleblower is not someone who releases sensitive information to the media; he is one who goes to his superiors, up to and including congress with their problem. The media is not part of the acceptable equation. MacLean deserved to be fired for his discretions.

    May 14, 2010 at 3:35 pm | Report abuse | Reply
  9. citizen taxpayer

    Sam, you're crazy. If you are a federal government employee than you should be fired for approving of such a wrong by the agency. We need people to be confident to whistleblow without any reprocussions. These type of employee's are watching out for my taxpayer dollars, while people like "sam" above are wasting it.

    Give this man his job back, he did what was right, ethically and morally.

    May 19, 2010 at 3:09 pm | Report abuse | Reply
  10. USACE

    The U.S. Army Corps of Engineers has a boatload of government employees who commit fraud, waste, and abuse. Whistleblowers are needed to blow their covers. An example is of a real estate chief named Terri Kaplan who does self-dealings with the government and siphon's business to her husbands company. Such conduct cannot be tolerated and we as taxpayers are footing the bill...how embarassing is that.

    May 19, 2010 at 3:12 pm | Report abuse | Reply
  11. Ann Lopez

    I too have worked with Army Corps of Engineers Chief Terri Kaplan and can attest to the fraud, waste, and abuse committed by her. As a boss, she never shows up to work on time (on average she is 2 hours late to work) and leaves early. Her hours are better than banker hours from 9AM to 2PM. Working 5 hours and claiming 8 hours of work is not fair, and if I were to do it i would be fired myself.

    September 11, 2010 at 7:09 pm | Report abuse | Reply
  12. TSA Watch

    U.S. Office of Special Counsel files motion in support of Transportation Security Administration ( TSA ) Federal Air Marshal Robert MacLean, August 25, 2011.

    Federal Times article, August 26, 2011:

    "'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,' Special Counsel Carolyn Lerner wrote in an amicus curiae brief to MSPB supporting former air marshal Robert MacLean. 'Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual's employment.'"

    http://www.federaltimes.com/article/20110826/DEPARTMENTS03/108260301/

    Entire U.S. Office of Special Counsel motion:

    http://www.cuacalifornia.com/US-Office-of-Special-Counsel-MSPB-amicus-curiae-Robert-MacLean-v-DHS-20110825.pdf

    August 31, 2011 at 8:53 pm | Report abuse | Reply

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