Robert MacLean was fired in 2006, two years after he told an MSNBC reporter that the agency planned to remove air marshals from flights that required costly overnight hotels. The disclosure embarrassed the agency, coming only days after the government had sent out a warning about planned terror attacks on U.S. aircraft.
The MSNBC report ignited an immediate firestorm on Capitol Hill by lawmakers demanding that the air marshal coverage be restored. The agency said the leaked text message did not reflect a final decision of the director. Ultimately, no overnight missions were cancelled.
When MacLean's involvement in the disclosure became known, he was fired for "unauthorized release of sensitive security information."
In the years since the firing, MacLean has fought to regain his position, winning the support of whistleblower protection groups while filing accusations of improprieties against high-level Federal Air Marshal Service officials.
In recent weeks, attorneys for MacLean and the TSA have quietly been negotiating a settlement. But Wednesday's ruling by a Merit System Protection Board administrative judge will likely kill chances of a reconciliation, said Jon Adler, president of the Federal Law Enforcement Officers Association.
Administrative Judge Franklin M. Kang wrote in his opinion that he found MacLean's testimony to be "evasive, nuanced, and inconsistent." Kang said MacLean's claims that he did not believe the information to be sensitive security information because it came through an unencrypted cell phone were "inconsistent with his own testimony, and improbable under these circumstances."
MacLean said he will appeal the administrative judge's decision to the three-member Merit System Protection Board, and hopes the members will see a suspension, and not termination, as the appropriate punishment for his actions.
MacLean's attorney, Tom Devine of the Government Accountability Project, said Wednesday night he had not studied the judge's decision, but said it is not unusual for whistleblowers to lose cases before the MSPB.
"The full MSPB has impressive new leadership and this will be a significant test case as to whether the times have changed for whistleblowers," he said. "We'll keep appealing this decision until Mr. MacLean achieves justices, until there are no doors left to pound on in the justice system."
The leader of an association representing air marshals called Wednesday's decision "unconscionable."
"It's a resurrection of the Animal Farm philosophy: Some are more equal than others," said Jon Adler, national president of the Federal Law Enforcement Officers Association. Adler said the TSA has excused misconduct by high-ranking members of the agency while harshly punishing misconduct by the rank-and-file.
"Bob MacLean should be put back to work," Adler said. "He was well intended."