A Rare Victory for an Aviation Security Whistleblower?

On the same day that Republicans scored nationwide victories and control of the Senate, the Supreme Court heard the case of whistleblower Robert MacLean. We will have to wait for their official legal decision, but the NY Times article, USA Today article, and other news reports indicate the Justices leaned strongly in favor of Mr. MacLean, in what may be a rare victory for Whistleblowers.

But, here’s something to think about. There is a saying, “Justice delayed is justice denied.” It has been nearly nine years since TSA retaliated against Mr. MacLean. He spoke up about an aviation safety issue way back in mid-2003, while employed at the Transportation Security Administration (TSA). TSA fired him in early 2006. He then went to the Merit Systems Protection Board (MSPB), but they did all they could to pretend his case was not within MSPB jurisdiction. [NOTE: this is standard operating procedure at this miserably failed federal agency; MSPB does almost nothing to protect merit principles.] MSPB issued their initial decision in August 2008, rejecting MacLean’s appeal. So, MacLean went to the United States Court of Appeals for the Ninth Circuit, where a panel of judges quickly determined MSPB should properly hear the Appeal. Mr. MacLean then went to the full MSPB (in DC), where he was again rejected in June 2009.

Another round with MSPB then followed. Same pattern: an Appeal to the regional MSPB, a nearly-automatic rejection, and a Petition for Review to the full MSPB. This was during 2010 and 2011. It produced the same predictable tone-deaf MSPB outcome: MSPB sustained the TSA firing. So, MacLean appealed higher, this time to the United States Court of Appeals for the Federal Circuit, where a panel of three Judges ruled unanimously for MacLean. In a concurring decision, Judge Evan Wallach wrote: “Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public.” [see the analysis, by POGO]

Common sense should have led the leadership at TSA to clean up their act, but they did not. Instead, they doubled down. It seems that bureaucrats have plenty of resources (spend all the time and money you want) and nothing to lose (who cares about accountability). So, TSA filed an appeal, this time to the Supreme Court. TSA has its own team of lawyers, but on matters like this, the ‘lawyering’ is handed off to a higher office. The Deputy Solicitor General tasked with defending TSA stupidity, Ian Gershengorn, was thus given the crummy job of arguing on behalf of, well, TSA’s vindictive stupidity. It made for an easy day for nine Supreme Court Justices. One comment by Justice Sonya Sotomayor: “The facts are very much in your favor.”

In time, we will learn if Mr. Gershengorn’s weeks of preparation will prove to be just one more example of pointless government waste by an arrogant and out-of-control federal agency; yet another Publicly-funded ordeal … just like the abusive retaliation TSA and MSPB continue to deal out to MacLean. This has been going on for nearly nine years now. What a colossal waste….

We Need a Change

Maybe the new Congress will start taking their work seriously, and start making federal agencies like TSA clean up their act. If the new Congress does, well, good for them. And, if they don’t, they deserve to be voted out in the next election.

When employees in any profession, be it aviation, food safety, nuclear energy, or whatever, put their job on the line to speak up about a safety or fraud issue within a federal agency, they should not become targets for agency retaliation. And we, as the public who pays for and is allegedly ‘served’ by these agencies, should expect high levels of agency performance (and transparency), to know that our money is not being wasted and our personal safety is not being endangered.

And, FAA is a Ripe Target for A Very Close Look by the New Congress

In the past decade, FAA brutally destroyed the careers of some of its bravest employees, who responsibly blew the whistle about fraud and safety issues. Many were fired in the same timeframe as Mr. MacLean, and many others were fired later, especially in the 2008-2009 presidential transition period. These people were wronged, but even worse, FAA and MSPB have done NOTHING to make these people whole. Here is a short list, of just a few: Gabe Bruno. Ed Jeszka. Jeff Lewis. Peter Nesbitt. David Pardo. Glen Siwarski. Anne Whiteman. Rich Wyeroski.

…And, who knows how many others….

Back in 1981, President Reagan fired thousands of air traffic controllers when their union, PATCO, ordered a strike. The wheels of political change moved slowly, but eventually thousands were hired back. In the early to mid-1990’s, many in their forties and even fifties were rehired, given new jobs at FAA ATC facilities. It has been done; it should be done again, but this time for a far smaller number of far more deserving employees.

Just because FAA and MSPB are broken, does not mean the Public cannot expect these federal agencies to get it right, at least some of the time. These FAA Whistleblowers are all good people, and they deserve to be appreciated. Their careers should not have been arbitrarily destroyed, nor should they have been re-victimized by a broken MSPB, just because they each bravely spoke up to serve the Public.

Maybe, just maybe, this new Congress will put the right pressure on FAA to clean up their act and make these inspectors, controllers, and other FAA Whistleblowers whole.

Here are a few comments submitted to the 11/4/2014 New York Times article by Adam Liptak:
If the court rules the way that it seems they might, i.e., to once again whack the bureaucratic hands of power, maybe, finally, people will wake up to the undue power that we have handed to this unelected and unaccountable fourth branch of government. Far too much legislation is passed that simply hands the keys of power to these people, will bills chock full of “the Secretary shall create rules…” type of language. The Code of Federal Regulations is an enormous monstrosity, growing like a cancer. Congress in particular needs to wake up and stop writing overly complex bills and allowing the permanent bureaucracy to bolster and protect its own turf by promulgating thousands of new pages of rules each and every year.
How wonderful. Our tax money being wasted on a shameful prosecution of a whistleblower who alerted the public to an issue that — who else but – homeland security and TSA themselves have argued was dangerous. The point of the government prosecution is obviously to terrorize anyone who might consider ethical obligations to the citizens of the US as more important than loyalty to a provincial subset of secret “security” bureaucrats.
He acted per his conscience to protect our national security. Give this man everything he is asking for. Then give him a medal. This is exactly the type of person I want working for the government.