Robert MacLean

Robert J. MacLean
Robert J. MacLean, former U.S. Air Force, U.S. Border Patrol, U.S. Federal Air Marshal Service, September 1988
Born	(1970-03-08) March 8, 1970 Torrejón Air Base, Madrid, Spain
Allegiance	United States
Service/branch	United States Air Force
Years of service	U.S. Air Force: 1988–1992 United States Border Patrol Agent: 1996-2001 U.S. Federal Air Marshal: 2001-2006
Rank	Senior Airman
Unit	44th Strategic Missile Wing
Awards	Air Force Good Conduct Medal Basic Training Honor Graduate Ribbon Air Force Outstanding Unit Award National Defense Service Medal

Robert J. MacLean (born March 8, 1970 in Torrejon Air Base, Spain) is a United States Department of Homeland Security (DHS) Transportation Security Administration (TSA) air marshal.^[1] On July 28, 2003, he made disclosures to national media about a strict dress policy that exposed air marshals' identities,^[2] and a proposed TSA operational plan that he believed would have reduced aviation security. He was fired on April 11, 2006, and has claimed whistleblower protections.^[3]

On April 26, 2013, a unanimous panel of three United States Court of Appeals for the Federal Circuit Judges found that MacLean was entitled to protections under the Whistleblower Protection Act and remanded the case to the Merit Systems Protection Board for further proceedings.^[4] DHS then appealed the three-judge panel's decision to ten judges on the Federal Circuit, all ten rejected DHS' appeal without comment.^[5]

DHS appealed to the Supreme Court of the United States. The Court accepted DHS' appeal for review and affirmed the Federal Circuit's decision in MacLean's favor 7-2. The decision was written by Chief Justice of the United States John Roberts.^[6]

Shortly after a United States Merit Systems Protection Board administrative judge issued an April 14, 2015 order that he was inclined to rule MacLean made protected whistleblower disclosures,^[7] on May 8, 2015, TSA voluntarily reinstated MacLean,^[8] but it opts to continue litigating the case in order to reduce the fees it owes MacLean's attorneys.^[9]

Early career

Robert MacLean takes oath of office at the Federal Law Enforcement Training Center in Glynco, GA, October 1996

MacLean served in the U.S. Air Force from 1988 to 1992. In the Air Force, MacLean was a nuclear weapons maintenance technician for Intercontinental Ballistic Missiles (ICBMs). He was awarded the Basic Training Honor Graduate Ribbon, Outstanding Unit Awards, the National Defense Service Medal, and the Air Force Good Conduct Medal

After his discharge, MacLean entered the U.S. Border Patrol as a border patrol agent and served almost six years in its San Diego Sector as a trainer. MacLean was recruited by the Federal Aviation Administration's Federal Air Marshal program immediately after the September 11 attacks. MacLean was in the first air marshal class to graduate after the September 11, 2001 attacks. After subsequently hiring a significant amount of new air marshals, the FAA program was moved under the new Department of Homeland Security's Transportation Security Administration and called the Federal Air Marshal Service.

Whistleblowing

On July 28, 2003, MacLean told an NBC News reporter that every federal air marshal in the U.S. and in his Las Vegas office received an unsecured text message ordering them to cancel their hotel reservations from August 2, 2003 and on. MacLean had been told that in an effort to reduce spending, air marshals would be removed from many long-distance flights that required hotel stays. The next day, MSNBC would report that several sources would confirm that every Federal Air Marshal was sent this text message. The TSA sent the unmarked message to unsecured cellular phones as opposed to the password-protected encrypted cellular Smartphone or Personal digital assistant (PDA).^[10]

MacLean said he previously brought his concerns to his TSA managers and a Department of Homeland Security Office of Inspector General field agent, but was rebuffed, leading him to make contact with national media. MacLean was quoted, anonymously, along with other unnamed sources, in a story written by Brock N. Meeks, Chief Washington correspondent for MSNBC.com.^[11][12]

TSA first denied that air marshals would have been shifted, but the morning after MacLean's disclosure, the agency changed its plans and dropped the plan.^[13][14]

TSA investigation and self-identification

Immediately after the disclosure, TSA managers began an investigation to determine the source of the leaks. Department of Homeland Security Inspector General Clark Kent Ervin later confirmed that TSA and FAMS managers threatened air marshals with prosecution for talking to the press.^[15][16] Weeks after MacLean made the disclosure, he stopped being anonymous, founded the Federal Law Enforcement Officers Association's Federal Air Marshal Service agency chapter and accepted the position of Executive Vice President.^[17]

Firing by TSA and administrative appeals

MacLean was fired by the TSA on April 11, 2006, on the grounds that he disclosed prohibited security information. On August 31, 2006, more than six months after he was fired, the TSA retroactively marked MacLean's July 2003 disclosure as being Sensitive Security Information, an unclassified information category.^[18]

MacLean appealed this decision to the Merit Systems Protection Board, but after the TSA issued its August 31, 2008 "Final Order on Sensitive Security Information," the agency argued that the MSPB had no jurisdiction to challenge an "Agency Order." The MSPB Administrative Judge dismissed the appeal without prejudice so MacLean could challenge the Agency Order in the United States Court of Appeals for the Ninth Circuit.^[19] On September 16, 2008, a Ninth Circuit panel ruled that the Transportation Security Administration was within its authority to retroactively classify the information as SSI, but found that MacLean could contest his termination before the MSPB under the authority of the Whistleblower Protection Act by arguing that he had a "good-faith belief" that the information did not qualify as "sensitive security information."^[20]

On June 22, 2009, a full MSPB panel declared that MacLean was not protected under the Whistleblower Protection Act.^[21] On May 12, 2010, MSPB administrative law judge Franklin M. Kang issued an Initial Decision to uphold MacLean's removal.^[22] MacLean appealed the decision to a 3-member appellate MSPB panel in Washington DC,^[23] but on July 25, 2011, the full panel denied all of MacLean's Whistleblower Protection Act defenses and affirmed the TSA's decision to terminate him.

Appellate court decision

A unanimous panel of three United States Court of Appeals for the Federal Circuit Judges ruled in favor of MacLean on April 26, 2013.^[24] The court ruled that MacLean's disclosure did not violate the law and he may have defenses under the Whistleblower Protection Act of 1989 (WPA).^[25] 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."^[26]

Supreme Court case

On January 27, 2014, the federal government filed a petition for writ of Certiorari with the Supreme Court of the United States.^[27] The Supreme Court granted the government's appeal on May 19, 2014 conference and post its decision online on May 5, 2014. One hour of oral arguments was held before the nine Supreme Court justices.^{[28][29][30][31][32]}

In a 7-to-2 decision written by Chief Justice of the United States John Roberts on January 15, 2015, the Supreme Court ruled in favor of Robert MacLean.^[33]

Reinstatement

With MacLean's U.S. Supreme Court victory, the United States Merit Systems Protection Board remanded his case to San Francisco administrative judge Franklin M. Kang for a new hearing. On April 14, 2015, Judge Kang issued an order informing DHS that he's inclined to rule that MacLean made a "protected [whistleblower] disclosure", therefore he may not sustain "the sole charge and specification" in his court, and "a continuation of the hearing does not appear to be necessary."^[34]

On May 8, 2015, MacLean was retroactively reinstated by the Department of Homeland Security, but the case remains in litigation.^[35][36]

References