Federal Air Marshall Robert MacLean will not get his job back, says an administrative judge. See my previous article on Mr. MacLean for background information.

Interestingly, if Mr. MacLean had worked for the airlines and not the federal government, he may have had more protection of his rights.

Judge upholds firing of federal air marshal
CNN, May 13, 2010
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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."

Fired federal air marshal loses another round
May 13th, 2010, 2:53 pm · 4 Comments · posted by Teri Sforza, Register staff writer
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Fired federal air marshal Robert MacLean had indulged in a glimmer of hope last fall, when it looked like an administrative law judge might let him have his job back.

But that’s over now. The judge has finally issued his ruling, and it upholds MacLean’s termination for leaking sensitive security information to the media (read it here: MacLean Decision).

MacLean of Ladera Ranch was axed from his cop-in-the-sky job after letting the world know about an ill-conceived plan to remove federal air marshals from long distance flights in 2003 – just days after a terrifying suicide hijacking alert. (This to save money on hotel bills.) There was a huge outcry; the plan was scrapped; and missions went on as per usual. But MacLean was fired for disclosing “sensitive security information” (even though the message wasn’t marked as such, and went to his non-secure cell phone, rather than his secure PDA). Then he was denied whistleblower status.

A sticking point for Judge Franklin M. Kang seemed to be MacLean’s belief that he did the right thing for public safety and had no regrets, on the one hand; while also arguing that he didn’t know the information he disclosed was protected. MacLean’s testimony was ”evasive, nuanced, and inconsistent,” Kang writes in his decision.

MacLean is smarting a bit over that. “I was nervous,” he said. “I was stumbling all over myself.” He even got choked up in the middle of his testimony, he said.

MacLean has essentially once chance at redemption left: He will appeal this decision to the three-member Merit System Protection Board, hoping that new Obama appointees will see things his way.

“I’m pretty confident in this new board,” MacLean sad. “I truly believe that I am going to get an honest review. Two of the three appointees have a pretty long record of protecting employees as well as protecting agencies. But it’ll be another long, long, long wait again.”

There has been behind-the-scenes talk in recent weeks of a settlement agreement, but that’s pretty much off the table now.

MacLean will be keeping himself busy: He’ll be participating in the 2010 National Whistleblower Assembly in Washington D.C. on May 24 and 25. That conference will be “a collective final push to get the Whistleblower Protection Enhancement Act (WPEA) out of Congress and adopted into law,” its organizers said.

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