Despite support from politicians and whistle-blower advocates, Robert MacLean has had little luck challenging his 2006 dismissal from the Transportation Security Administration. And though the former Las Vegas air marshal still has plenty of fight in him, he is running out of ways to keep his case alive.
"I’ve never doubted that I did the right thing," MacLean said of his public disclosure six years ago that the TSA sought to reduce armed security on long-distance flights at a time when the government was warning of another 9/11-style attack.
"I’m not giving up, because I don’t want to see what happened to me happen to someone else."
As the House and Senate try to work out a bill to protect the whistle-blowers of tomorrow, politicians including Senate Majority Leader Harry Reid of Nevada have asked the White House to review the cases of past whistle-blowers such as MacLean who believe they have suffered retaliation for trying to protect the public.
Reid’s office said it has called for a review of MacLean’s case and also that of Spencer Pickard, another air marshal once employed by the TSA in Las Vegas.
Pickard resigned under pressure in 2006 after criticizing TSA dress codes and boarding policies he said made air marshals too easy to identify.
"We’ve been trying to get someone with the ability to act to review the cases," Reid spokesman Jon Summers said in an e-mail. "We brought our constituents’ circumstances to the (Obama) administration’s attention; but we did not push a specific course of action, since doing so is outside of our jurisdiction."
Assistant Deputy Attorney General Rajesh De told Congress in June that the White House would consider retroactive reviews of whistle-blower cases. De did not return phone calls seeking a comment.
White House spokesman Adam Abrams said the Obama administration is "deeply committed to protecting whistle-blowers" and to the passage of new whistle-blower legislation.
He didn’t address the issue of retroactive reviews of cases.
The push for retroactive review of whistle-blower cases coincides with bills in the House and Senate aimed at bolstering whistle-blower protections.
The biggest difference is that the House version includes access to federal courts for national security whistle-blowers, while the Senate version does not.
Both MacLean and Pickard’s disclosures got the attention of Capitol Hill and were credited with bringing reform. After Pickard’s public criticism, the TSA eased its boarding and wardrobe rules for air marshals. Following MacLean’s revelation, the plan to cut back security on flights was scrapped.
In 2006, the government fired MacLean, claiming he had revealed "sensitive security information" to a television reporter who aired a story about the plan. MacLean said he went to the reporter only after his concerns were ignored by the TSA.
The U.S. Merit Systems Protection Board, a government review board, upheld the grounds for MacLean’s firing in June without a full hearing. It ruled MacLean’s disclosure was not covered by whistle-blower protection laws.
This was a typical ruling by the board, according to the Washington-based Government Accountability Project, which said the board has ruled in favor of whistle-blowers only three times out of 56 cases since 2000.
Tom Devine, the group’s legal director, told Congress in June that "there is no credible defense" of the merit board’s performance.
For years, the now unemployed MacLean, who lives in Orange County, Calif., has had to settle for moral victories, such as the one in July when a New Jersey congressman lauded him for speaking out against a misguided proposal.
But such praise hasn’t helped MacLean find a job.
"I’ve applied for 11 police department jobs in Southern California, and they’ve all turned me down," MacLean said. "I passed every test there was, but my job history disqualified me."
Already dealt numerous setbacks in his case, the 39-year-old MacLean continues to challenge his termination.
His case is set for another hearing before the merit board on Tuesday. He has represented himself in the case since the board ruled against him in June. MacLean’s only remaining hope in that forum is to assert that his disclosure was protected by First Amendment rights.
But many are questioning the board’s effectiveness to rule on whistle-blower cases.
Reid’s support for a review of past whistle-blower cases follows a call from a bipartisan group of seven congressmen. They include Rep. Edolphus Towns, D-N.Y., chairman of the House Oversight and Government Reform Committee, who in April wrote a letter to President Barack Obama asking for an executive order that would establish a program to review individual whistle-blower cases.
"We encourage you to take action to restore the careers of employees who were wrongly terminated or marginalized by previous administrations after blowing the whistle," the letter said.
Earlier this year, a coalition of government watchdog groups asked Obama for a similar order.
The names of four past and present Las Vegas air marshals were on a list of names circulating among groups that signed that letter.
Since its massive expansion after the 9/11 attacks, the Federal Air Marshal Service has come under particular scrutiny for its treatment of whistle-blowers.
In a letter to Congress, Matthew Issman, a former Homeland Security Department official who is now assistant inspector general for the Treasury Department, accused the air marshal service of going on "witch hunts" against MacLean and other agents. Issman also wrote that the agency’s former director was "a raging megalomaniac who was desperate to silence any dissent" within the agency.
TSA spokesman Nelson Minerly said the Federal Air Marshal Service under current head, Robert Bray, has worked to "build new lines of communication with the work force."
Contact reporter Alan Maimon at amaimon @reviewjournal.com or 702-383-0404.