July 2, 2009
MSPB Ruling Guts Whistleblower Protection Act
By Tom Devine
The government is taking a crazy quilt approach to whistleblower protection. While there is bipartisan support for whistleblowers, whistleblowers are being gutted in the back room. We call for a uniform approach to protect all whistleblowers, who in turn protect the public, citizens, taxpayers, and the safety and security of the nation.
The government is taking a crazy quilt approach to whistleblower protection. While there is bipartisan support for whistleblowers, and while Obama moves to strengthen the False Claims Act (FCA), other members of his administration are working just as fast to try and gut whistleblower protection. We call for a uniform approach to protect all whistleblowers, who in turn protect the public, citizens, taxpayers, and the safety and security of the nation.
WASHINGTON - June 24 - 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.
The Government Accountability Project (GAP) is a 30-year-old nonprofit public interest group that promotes government and corporate accountability by advancing occupational free speech, defending whistleblowers, and empowering citizen activists. We pursue this mission through our Nuclear Safety, International Reform, Corporate Accountability, Food & Drug Safety, and Federal Employee/National Security programs. GAP is the nation's leading whistleblower protection organization.
CONTACT: Government Accountability Project
Tom Devine, Legal Director
Phone: 202.457.0034, ext. 124
Shanna Devine, GAP Legislative Coor.
Phone: 202.457.0034, ext. 132
Dylan Blaylock, Communications Dir.
Phone: 202.457.0034, ext. 137
Submitter: James Murtagh
James J. Murtagh, Jr. is a doctor of pulmonary, critical care and sleep medicine, and the Medical Director of several sleep laboratories in Southern Ohio. Dr. Murtagh extensively writes on medical ethics. Dr. Murtagh is the founder of a new company launched August 3, 2011 to promote innovative methods to treat sleep disorders. Dr. Murtagh maintains a consulting service with Georgians for Justice to advocate for dignity and respect for all healthcare workers and patients, and to protect electronic privacy.