commentaryin the news

DHS blocks justice for whistleblower, wastes tax dollars

money-on-fire-2Robert MacLean had been waiting seven years for resolution of his whistleblower complaint against the federal Transportation Security Administration (TSA). Justice finally seemed near when the U.S. Court of Appeals for the Federal Circuit ruled in his favor on April 26. But, now, the Department of Homeland Security (TSA’s parent agency) is trying to drag out the case for additional months and  possibly years at a cost to taxpayers that is hard to justify. 

MacLean’s troubles began after he disclosed a change to TSA policy that would have left passenger flights vulnerable to terrorists. As a result of his disclosure, Congress ensured that the change would not be implemented. MacLean, who may have prevented a repeat of the 9/11 attacks, should have been commended for his good judgement and courage. But, the mandarins at TSA seem to prefer unquestioning obedience to strengthening national security. They retroactively designated the information MacLean disclosed as Sensitive Security Information (SSI), then fired him for disclosing SSI.

In a case so clearly offensive to fairness, it should have been possible to restore MacLean to his job within weeks.  But, the “justice” process for federal employees doesn’t work that way; it barely works at all.  The odds of a federal employee prevailing in any of the special courts assigned to hear their complaints are said to be less than three percent, and whistleblower cases may drag on for years and years.  Retaliating officials are defended by government attorneys who pass on the expense to taxpayers. In contrast, whistleblowers have to find their own attorneys and pay fees of $200-400 an hour. For most, it becomes a question of “How much justice can I afford?”

There’s a financial breaking point for nearly every whistleblower, and the government does its best to achieve it through endless delays. Even when there is no credible excuse, the government delays. What it lacks in legal brilliance it makes up for with old-fashioned stonewalling. For vindictive government officials it’s all good because even when the government loses a case, the public pays the cost of that, too. Retaliating officials and their co-conspirators are rarely punished and many receive bonuses and promotions–also at taxpayer expense. Perversely, the only costs associated with whistleblower cases that the public are not forced to cover are the costs of protecting whistleblowers from illegal government retaliation. In essence, taxpayers are paying for the bullets used to shoot down brave individuals trying to protect the rest of us from harm.

Increasingly, it seems, the Executive Branch is using whistleblowers as pawns in alarming power grabs.  In Maclean, for example, the government argued that it had the right to deny a whistleblower the protections of the Whistleblower Protection Act (WPA) because, in other legislation, Congress had authorized DHS to issue regulations for the protection of Sensitive Security Information.

The Merit Systems Protection Board or MSPB (itself part of the Executive Branch) agreed with the DHS’ expansive view of executive powers.  But, the U.S. Court of Appeals for the Federal Circuit reversed the MSPB’s decision, noting that Congress had clearly indicated that it did not want DHS to have such broad authority.  Indeed, three members of Congress submitted friend-of-the-court briefs in support of Mr. MacLean.

The appeals court ruled that “Mr. MacLean’s disclosure is not “specifically prohibited by law” within the meaning of the WPA.” In other words, Congress, not the Executive Branch, is empowered to decide the extent of whistleblower protections. The court thus reaffirmed the separation of powers doctrine that is central to the U.S. Constitution, our chief protection against tyrannical government.

Nevertheless, the DHS seems determined to find some loophole in that ruling to exploit–regardless of the cost to taxpayers and while the rest of government struggles with major budget cuts. On May 3, the DHS filed a request with the court for an extension of time of “60 days, up to and including August 9, 2013” to file a petition for rehearing or rehearing en banc.”

“This case involves a sensitive issue of law that requires careful review and deliberation by the Department of Homeland Security, the Department of Transportation, and other interested agencies. Additional time is needed to continue these discussions. In addition, we must secure the Solicitor General’s permission before filing any such petition. We anticipate that an additional 60 days will provide the Solicitor General sufficient time to determine whether the United States will file any further request for review and for the undersigned counsel to adequately prepare and obtain the necessary supervisory approval prior to filing the petition.”

The request by DHS delays justice for Robert MacLean, at a minimum, an additional 60 days (on top of the 45 days automatically granted).  If the DHS succeeds in getting another layer of review, the delay could extend another year or longer. Taxpayers and Mr. MacLean will pay the costs of these delays, and for what? An end run around Congress? To punish a conscientious civil servant?

In cases like MacLean’s, the rights of all Americans as well as those of the whistleblower are at stake. For our own protection, we the taxpayers need to make our voices heard. We should begin by petitioning the administration not to appeal the Federal Circuit’s decision in the MacLean case.  Secondly, we should press Congress for legislation that levels the playing field for whistleblowers–financially as well as legally–in recognition that the whistleblower’s interests are intertwined with those of the nation.

Photo by purpleslog @ Flickr (Creative Commons license)