Robert Mac Lean - Cancellation of Whistleblower Protection For Retroactive Unclassified Information Designation of Dis

Cancellation of Whistleblower Protection For Retroactive Unclassified Information Designation of Dis

After the TSA issued its August 31, 2008 "Final Order on Sensitive Security Information (SSI)," the TSA 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, a forum in which the "evidentiary standard" is extremely high. September 16, 2008, a Ninth Circuit panel consisting of a majority of Presidents George H. W. Bush and George W. Bush appointees ruled that the Transportation Security Administration was within its authority to issue a Final Order that retroactively marks MacLean's disclosure as UNCLASSIFIED Sensitive Security Information (SSI) over three years after it was disseminated. The court's ruling stated:

MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act (WPA) of 1989 and contend that the lack of clarity of the TSA's 2003 'sensitive security information' regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as 'sensitive security information'.

On June 22, 2009, the full MSPB panel in Washington DC, consisting entirely of President George W. Bush appointees, Neil McPhie and Mary Rose, who effectively killed MacLean's case and the Whistleblower Protection Act in their single landmark decision. Right after the panel issued their decision declaring that MacLean is not protected under the Whistleblower Protection Act because he violated a retroactively applied unclassified information label—Sensitive Security Information (SSI) -- regulation, the panel then marked their entire decision with SSI labels and "WARNING" nondisclosure disclaimers and uploaded it onto their public website ( www.MSPB.gov ). The panel has since removed the SSI labels and removed it from their public website.

U.S. Senator Claire McCaskill of Missouri made this comment to the Washington Post about the MSPB's decision against MacLean:

"It is no secret in Washington that the MSPB has not provided adequate protections to federal whistleblowers for years now. It's way past due that we provide more meaningful protections to the brave federal employees who are willing to step out and risk their careers to expose fraud, waste and abuse of taxpayer dollars, much as we are doing for whistleblowers at federal contractors."

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