Air Marshal’s disclosure found not “specifically prohibited” on appeal

| Apr 29, 2013 | Employee Disputes

When a federal government employee comes forward as a whistleblower, they understand the risk to their job and career. They have probably already tried to work with their chain of command, and report their concerns to their supervisors. Because so much of what government employees do affects public safety, witness the questions of what inspections were carried out at the West Fertilizer plant prior to the catastrophic explosion, just standing by and watching some disaster unfold is not an option.

A man who worked as a Department of Transportation Air Marshal became concerned in 2003 that a plan by the TSA to remove all Air Marshals from overnight flights created a “danger to the flying public.” This was at a time of a heightened hijacking threat. After he told a reporter at MSNBC about the plan, they published a news story and the agency withdrew the plan after public criticism. A later agency investigation discovered he had leaked the information and he was fired. The man argued to the Merit Systems Protection Board (MSPB) that his reporting was “protected whistleblowing activity.”

The MSPB upheld his firing, but on appeal to the Federal Circuit, the court found that disclosure was “not specifically prohibited by law.” The Federal Circuit sent the case back to the Board to determine whether the former air marshal reasonably believed that his leak of the TSA’s plan to remove air marshals on overnight flights “evidenced a substantial and specific danger to public health or safety.”

This type of case depends on the effectiveness of your attorney in provided clear and compelling reasons for your decision to the Board.

Whistleblower Protections Blog, “TSA Whistleblower Robert MacLean Wins Appeal,” Mary Jane Wilmoth, April 26, 2013

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