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Establishment of the Robert MacLean Living Legacy Fund

In recognition of one who has exemplified, through life and service, a desire to follow in the Code of Ethics of Government Service, a Robert MacLean Living Legacy Fund is being established within the WSF Hall of Fame whistleblower’s endowment. Robert MacLean stands as a giant among men, wise beyond his years. His wisdom was accumulated from life, schooling, military service, business, marriage, travel, and research. He dedicated his life to the highest ideals of Government Service.

Whistleblower Support Fund Living Legacy Robert MacLean

Robert J. MacLean (born March 8, 1970 in Torrejon Air Base, Spain) is a former Transportation Security Administration air marshal.[1] On July 28, 2003, he made disclosures to national media about proposed TSA operational changes that he believed would have reduced aviation security. He was fired on April 11, 2006, and has claimed whistleblower protections.[2] On April 26, 2013, a unanimous panel of three United States Court of Appeals for the Federal CircuitJudges 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.[3]

Summing up this man’s achievements is a formidable task; but many people consider it a privilege to know him, feel fortunate to experience his vast amount of courage, have benefited from his whistleblowing, and deeply appreciate his many contributions to the United States and to our unique American System of government. The purpose of this fund is to provide the Whistleblower Support Fund with additional annual income that furthers its mission. The fund will be used for (1) digitization of whistleblower materials, (2) funding of new research, and (3) campaigns to gather funds for the program. The fund will never be liquidated and will serve as a living legacy for the projects of the Whistleblower Support Fund. There is to be no limit to the amount of money that may be contributed to this fund over the ensuing years. Finally, this fund is created with profound gratitude for the life and the many contributions of Robert MacLean.

WSF Endowment Representative Don Soeken July 4, 2015

Authorized July 4, 2015, by Robert J. MacLean

Early Career

MacLean served in the U.S. Air Force from 1988 to 1992. In the Air Force, MacLean was a nuclear weapons maintenance technician forIntercontinental 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 theFederal 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).[4] 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.[5][6] 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.[7][8]

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.[9][10] 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.[11]

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.[12] 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.[13]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.”[14]

On June 22, 2009, a full MSPB panel declared that MacLean was not protected under the Whistleblower Protection Act.[15] On May 12, 2010, MSPBadministrative law judge Franklin M. Kang issued an Initial Decision to uphold MacLean’s removal.[16] MacLean appealed the decision to a 3- member appellate MSPB panel in Washington DC,[17] 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.[18] 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).[19] 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.”[20]

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.[21] The Supreme Court granted the government’s appeal on May 19, 2014 conference and post its decision online on May 5, 2014. At least one hour of oral arguments before the nine justices will be held[dated info] during the Supreme Courts next term on November 4, 2014.[22][23][24][25][26][27] 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.[28]

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.”[29] On May 8, 2015, MacLean was retroactively reinstated by the Department of Homeland Security, but the case remains in litigation.[30][31]

References

1. “Whistleblowers May Have a Friend in the Oval Office”. The Washington Post. 2008-12-11. Retrieved 2008-12-28.

2. “Robert MacLean: Homeland Security Whistleblower”. Project On Government Oversight. 2011-08-10. Retrieved2011-09-04.

3. “What TSA Whistleblower Robert MacLean Tells Us About Post-9/11 Security”. Mother Jones. 2013-05-09. Retrieved 2013-06-11.

4. “Fired federal air marshal loses whistle-blower battle”. The Orange County Register. 2011-08-08. Retrieved2012-11-12.

5. “Whistleblowers hit turbulence; TSA ex-employees say they’ve been blackballed for revealing problems”. New Jersey Star Ledger. 2007- 10-14. Retrieved 2007-12-08.

6.  “Air Marshals Pulled from ‘Key Flights'”.NBC News. 2003-07- 30. Retrieved2006-10-30.

7. “Team Bush Scrubs Plan to Cut Air Marshal Force”. New York Daily News. 2003-07-31. Retrieved 2007-07-11.

8. “July 30, 2003 CNN Television Transcripts”. CNN. 2003-07-30. Retrieved2008-11-24.

9. “Review Of Alleged Actions By Transportation Security Administration To Discipline Federal Air Marshals For Talking To The Press, Congress, Or The Public” (PDF).Official Website for the Department of Homeland Security Office of Inspector General. 2003-08-11. Retrieved 2008-11-15.

10. “Watchdogs, not lapdogs by Clark Kent Ervin”. Los Angeles Times. 2007-05-19. Retrieved 2009-09-06.

11. “Ex-air marshal to sue over ‘SSI’ label”.The Washington Times. 2006-10-30. Retrieved 2008-11-15. 12. Jump up^ Margasak, Larry (May 10, 2007). “U.S. Labels 2003 Memo ‘Sensitive'”. Associated Press. Retrieved 2007-05-10.

12. Margasak, Larry (May 10, 2007). “U.S. Labels 2003 Memo ‘Sensitive'”. Associated Press. Retrieved 2007-05-10.

13. “Did O.C. air marshal endanger public, or protect it?”. Orange County Register . 2009-05-15. Retrieved 2009-05-30.

14. “MacLean v. Department of Homeland Security” (PDF). United States Court of Appeals for the Ninth Circuit. 2008-09-16. Retrieved 2008- 09-16. 15. Jump up^ “Air marshal in legal battle”. Orange County Register . 2009- 06-26. Retrieved2009-07-02.

16. “Fired air marshal’s saga conjures ‘Animal Farm,’ supporters say”. Orange County Register . 2010-05-19. Retrieved2010-07-19.

17. “The MSPB’s Terrible Ruling on Robert MacLean”. The Government Accountability Project. 2010-05-18. Retrieved 2010-07-19.

18. “Appeals Court Questions Firing of Air Marshal Who Blew Whistle”. The Wall Street Journal. 2013-04-26. Retrieved 2013-05-02.

19. “Whistleblowing Air Marshal Robert MacLean’s Case Gets New Life”. FindLaw. 2013-04-26. Retrieved 2013-05-02.

20. “Latest ruling a ‘vindication’ for fired federal air marshal”. The Orange County Register. 2013-05-02. Retrieved 2013-05-02.