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MacLean v. DHS: U.S. Office of Special Counsel amicus brief in support of MacLean

MacLean v. DHS: U.S. Office of Special Counsel amicus brief in support of MacLean

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Published by Robert J. MacLean
The U.S. Office of Special Counsel ( OSC ) filed an amicus curiae with the U.S. Merit Systems Protection Board ( MSPB ) in support of his actions. Former Transportation Security Administration ( TSA ) Federal Air Marshal Robert MacLean was fired after his managers launched a 2004 retaliatory investigation against him. The OSC was created by Congress in response to the Nixon Watergate scandal and the fear it created preventing whistleblowers from coming forward to disclose corruption. Their gutsy action in the MacLean case is unprecedented as the OSC has never intervened AFTER the full MSPB in Washington DC has issued a "final decision." U.S. Office of Special Counsel August 25, 2011 amicus curiae in support of Robert MacLean, TSA Transportation Security Administration FAMS Federal Air Marshal Service whistleblower. U.S. Special Counsel Carolyn Lerner wrote: "Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [UN-classified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual's employment." . . . No specific statute exists that would allow the TSA to negate [Civil Service Reform Act (CSRA)] whistleblower protections. The statute that the TSA relied upon to retroactively designate MacLean's protected disclosure as SSl does not establish particular criteria for withholding and does not refer types of matters to be withheld. . . . The Board's expansion of the exception to CSRA protected whistleblowing is contrary to the plain meaning and intent of the statute and significantly expands what Congress intended to be a very narrow exception to CSRA protected whistleblowing, thereby chilling would-be whistleblowers."
The U.S. Office of Special Counsel ( OSC ) filed an amicus curiae with the U.S. Merit Systems Protection Board ( MSPB ) in support of his actions. Former Transportation Security Administration ( TSA ) Federal Air Marshal Robert MacLean was fired after his managers launched a 2004 retaliatory investigation against him. The OSC was created by Congress in response to the Nixon Watergate scandal and the fear it created preventing whistleblowers from coming forward to disclose corruption. Their gutsy action in the MacLean case is unprecedented as the OSC has never intervened AFTER the full MSPB in Washington DC has issued a "final decision." U.S. Office of Special Counsel August 25, 2011 amicus curiae in support of Robert MacLean, TSA Transportation Security Administration FAMS Federal Air Marshal Service whistleblower. U.S. Special Counsel Carolyn Lerner wrote: "Whistleblowers should not have to guess whether information that they reasonably believe evidences waste, fraud, abuse, illegalities or public dangers might be later designated as SSI [UN-classified sensitive security information] and therefore should not be disclosed. Rather than making the wrong guess, a would-be whistleblower will likely choose to remain silent to avoid risking the individual's employment." . . . No specific statute exists that would allow the TSA to negate [Civil Service Reform Act (CSRA)] whistleblower protections. The statute that the TSA relied upon to retroactively designate MacLean's protected disclosure as SSl does not establish particular criteria for withholding and does not refer types of matters to be withheld. . . . The Board's expansion of the exception to CSRA protected whistleblowing is contrary to the plain meaning and intent of the statute and significantly expands what Congress intended to be a very narrow exception to CSRA protected whistleblowing, thereby chilling would-be whistleblowers."

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Published by: Robert J. MacLean on Sep 03, 2011
Copyright:Public Domain

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07/22/2014

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UNITEDSTATES
OF
AMERICA
MERITSYSTEMS
PROTECTIONBOARD
ROBERT
J.
MACLEAN,
Appellant,
DEPARTMENT
OF
HOMELANDSECURITY,MOTIONFORLEAVE
TOFILEBRIEF
AS
AMICUS
CURIAE
INSUPPORT
OF
APPELLANT
ROBERT
J.
MACLEAN
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NUMBER
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The
UnitedStatesOffIce
of
SpecialCounselherebymovesthisBoardforleavetofileits
Briefin
support
of
Appellantas
amicuscuriae
in
the
above-captionedmatter.Pursuant
to
5C.F.R.§1201.34(e),as
amicuscuriae,
andforthereasonscitedinthebrief,
the
Officerespectfullyrequestsleavetosubmit
the
attached
brieffor
theBoard's
consideration.Respectfullysubmitted,CarolynLernerSpecialCounselU.S.Office
of
SpecialCounsel1730MStreet,N.W.Washington,D.C.20036Tel:(202)254-3667Fax:(202)653-6864
U.S.Office ofSpecial Counsel August25,2011 amicus curiae in supportofRobertMacLean,TSA Transportation Security Administration FAMS Federal AirMarshal Service whistleblower
 
CERTIFICATEOFSERVICEIcertifYthatonAugust25,2011,Iservedacopy
of
theforegoingMotionand
Brief
of
U.S.Office
of
SpecialCounselas
amicuscuriae
by
FirstClassMail,postageprepaid,uponthefollowingindividuals:EllenDizonCalaghaus,Esq.Department
of
HomelandSecurityAttorney-Advisor
TSA
Office
of
ChiefCounsel450GoldenGateAveP.O.Box36018SanFrancisco,CA94102ThomasDevine,Esq.LegalDirectorGovernmentAccountabilityProject1612KStreet,
NW
Suite1100Washington,DC20006LarryBerger,Esq.GeneralCounselFederalLawEnforcementOfficersAssociationMahon
&
Berger350OldCountryRdGardenCity,NYHowardSchulman,Esq.SeniorCounselOffice
of
U.S.CongressmanDennisKucinich2445RayburnHouseOfficeBuildingWashington,DC20510
I
 
DocketNo.SF-0752-06-0611-I-2UNITEDSTATES
OF
AMERICA
MERIT
SYSTEMS
PROTECTION
BOARD
ROBERT
J.
MACLEAN,
Appellant,
v.
DEPARTMENT
OF
HOMELANDSECURITY,
Agency.
BRIEF
OF
U.S.OFFICE
OF
SPECIALCOUNSEL
AS
AMICUS
CURIAE
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U.S.Office
of
SpecialCounsel1730MStreet,N.W.Washington,D.C.20036

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