MSPB has upheld the Transportation Security Administration’s (TSA) removal of appellant from his position as a Federal Air Marshall (FAM) based on a charge of unauthorized disclosure of Sensitive Security Information (SSI). See MacLean v. Department of Homeland Security, Docket No. SF-0752-06-0611-I-2 (June 22, 2009). The agency charged appellant with disclosing to media that all Las Vegas FAMs were sent a text message that Remain Overnight missions were cancelled through a specific timeframe. The appellant claimed he only released the information to media after his concerns that he raised for public safety with his supervisor and agency’s Office of the Inspector General went unanswered. The agency issued a final order finding that appellant’s disclosure of information to the media was SSI and in violation of federal regulation. See 49 C.F.R. § 1520.7(j).

The MSPB appeal of the removal was dismissed without prejudice so the appellant could appeal the agency’s decision to a U.S. Court of Appeals. However, the court upheld the agency’s final order that the information the appellant disclosed without authorization was SSI, thereby supporting the removal action. Subsequently, the MSPB appeal was reinstated through an interlocutory appeal, in which an administrative judge upheld the holding of the court of appeals and concluded that the appellant was not deserving of whistleblower protection. The appellant appealed the judge’s decision to the Board for review.

The Board held that it does not have the authority to review TSA’s determination that a communication contains SSI when that determination has already been upheld by a U.S. court of appeals. The Board explained that since Congress provided TSA with the responsibility of defining, regulating and protecting SSI, it is within the agency’s authority to decide whether the information appellant disclosed is considered SSI. Here, the agency previously concluded through its own regulation that it was necessary to prohibit the disclosure of information "obtained or developed in carrying out security…if disclosing the information would…be detrimental to the security of transportation." See 49 U.S.C. § 114(s)(1)(C). Thus, the appellant’s action of disclosing confidential information concerning the security of transportation fits within this prohibition.

Also relevant to the Board’s finding that the U.S. Court of Appeals decision binds the Board is that Congress provides individuals with the opportunity to challenge the agency’s determination, and the appellant availed himself of such opportunity. See 49 U.S.C. § 46110. Likewise, the fact that the agency did not issue its order finding the disclosed information was SSI until after the appellant’s removal does not alter the decision here because the appellant was still given the opportunity to challenge the agency’s determination.

Moreover, the Board affirmed the administrative judge’s finding that the information the appellant disclosed to media was not protected by the Whistleblower Protection Act because the disclosure was in violation of the regulations governing SSI. See 5 U.S.C. § 2302(b)(8). The agency regulation at issue states that disclosures considered to be SSI are excluded from whistleblower protection since they are "specifically prohibited by law." See 49 C.F.R. § 1520. The individual is not afforded whistleblower protection as long as the governing agency regulation is properly promulgated; substantive in nature; and there is not a clear showing of contrary legislative intent. See Chrysler Corp. v. Brown, 441 U.S. 281 (1979). The Board held the agency’s regulation at issue here met these requirements because of the following: 1) the regulation specifically grants the agency authority to promulgate regulations that prohibit disclosure of information that would be "detrimental to the security of transportation;" 2) the regulation is substantive; and 3) and the legislative history of the "specifically prohibited by law" language does not establish contrary legislative intent.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

 

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