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Fed Cir Rejects DHS' Request In TSA Whistleblower Case

By Betty Wang, JD on September 18, 2013 | Last updated on March 21, 2019

Last month, the Federal Circuit rejected a petition from the Justice and Homeland Security departments (DHS). On August 30, the U.S. Appeals Court for the Federal Circuit assessed a petition from the DHS requesting a full court review of a decision supporting former TSA air marshal Robert MacLean and his whistleblower actions back in 2006, CNN reports.

Seven years ago, MacLean had exposed a 2003 DHS decision to sever the inclusion of federal air marshals on long-distance flights, even with the increasing threat of terrorism on passenger flights. Marshal was then fired for leaking this information about air marshal travel cuts.

MacLean had initially appealed his termination to the Merit Systems Protections Board, who affirmed the agency's decision to fire him. The board cited the importance of the need to protect sensitive security information. However, in just April of this year, the circuit court supported MacLean and demanded that the government end their "seven-year vendetta" against him, according to Government Executive.

The case of Robert MacLean then returned to a federal board to determine whether MacLean's disclosures deserve whistle-blower protection.

The lawyers at the Government Accountability Project (GAP), who have been representing MacLean, are thrilled, and are hopeful that this means the entire Federal Circuit is reinforcing the rights of whistleblowers.

Under the Whistleblower Protection Act, certain whisteblower protections are in place to ensure that federal whistleblowers are not retaliated against merely for reporting actions that are for the general welfare or public health or safety or others.

In this most recent decision, the Federal Circuit stated that they believed MacLean has met the threshold of eligibility for whistleblower protection. Now, MacLean must demonstrate that he reasonably believed that his disclosures were in line with evidencing a specific and substantial danger to public health and/or safety.

"Frankly, that's a hearing we would relish because there's little question that his disclosures were worthy," said Tom Devine, of GAP, reports CNN. "Numerous members of Congress attacked the travel cuts as betraying the department's responsibilities. The Department of Homeland Security said it was a mistake and canceled the orders less than 48 hours after his disclosure. They only corrected the mistake because of his disclosure."

Devine said the TSA has three options: appeal Friday's decision to the Supreme Court, defend the original case before the Merit System Protection Board or settle with MacLean. If the TSA takes no action (either appealing to the Supreme Court, or possibly defending the original case before the Merit System Protection Board), then this case will automatically be returned for a hearing.

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