Robert Mac Lean - Federal Court of Appeals Unanimously Rules in Favor of Robert MacLean in A Precedential Decision

Federal Court of Appeals Unanimously Rules in Favor of Robert MacLean in A Precedential Decision

After going 24 minutes into overtime of oral arguments on January 4, 2013, on April 26, 2013, a unanimous panel of three United States Court of Appeals for the Federal Circuit Judges issued a precedential decision in favor of MacLean. 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).

We agree with Mr. MacLean that the does not “specifically prohibit” the disclosure at issue in this case. The ATSA’s plain language does not expressly prohibit employee disclosures, and only empowers the Agency to prescribe regulations prohibiting disclosure of “if the Secretary decides disclosing the information would . . . be detrimental to public safety.” 49 U.S.C. § 40119(b) (emphasis added). Thus, the ultimate source of prohibition of Mr. MacLean's disclosure is not a statute but a regulation, which the parties agree cannot be 'law' under the WPA.

For the TSA to sustain its termination of MacLean, it must now attempt to argue that he did not have "a reasonable belief" that there was potential danger. Experts believe it will be close to impossible for the TSA to make such an argument given that the TSA itself admitted that its plan was "a mistake" and cancelled it before every going into effect, and so many prominent leaders of Congress expressed outrage, such as Chuck Schumer, John Kerry, and Hillary Clinton.

Circuit Judge Evan Wallach wrote a separate opinion concurring with his two fellow circuit judges:

Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public.

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