Whistleblower: TSA hoarded 1.4 million masks, despite plea to donate to health care workers

The Transportation Security Administration has hoarded more than 1.4 million N95 protective masks its employees do not need, and agency officials have refused to send them to health care workers clamoring for the critical gear, according to a whistleblower complaint filed by a TSA lawyer.

Charles Kielkopf, TSA general counsel for Minnesota and three other states, said in an interview Friday he felt compelled to file the complaint in response to "incredible hubris of power over common sense" from agency leadership. TSA screeners have only been instructed to wear surgical masks, and Kielkopf said very few have chosen to wear the optional and less comfortable N95 respirator masks.

As a protective gear shortage forced emergency workers in hot spots to use the same disposable masks for weeks, the remaining stockpile of N95s has sat unused in TSA storage, according to interviews and documents reviewed by the Star Tribune.

"If you're in combat, if the guys in the rear have bullets, they don't keep them for themselves. They give them to the guys on the front lines," said Kielkopf, a West Point graduate who served 23 years in the military before joining TSA in 2003. "And for God knows what reason we're keeping these things."

Kielkopf, who's based in Ohio, filed the whistleblower complaint last Monday with the U.S. Office of Special Counsel, an independent federal investigative agency.

On Friday, an attorney for the special counsel office notified Kielkopf in writing that they are "unable to determine a substantial likelihood of wrongdoing in this matter" and did not plan to investigate his claim.

Kielkopf's complaint was first reported by ProPublica last week.

A spokesman for TSA declined to be interviewed for this report, but said in a statement the agency received "a sufficient supply of N95 masks" to be available for screeners who complete requisite training and choose to wear them.

"TSA's highest priority is to ensure the health, safety and security of our workforce and the American people," it said.

Since early March, a shortage of N95 masks has emerged as a pervasive problem for workers on the front lines of the COVID-19 pandemic across the United States. Unlike surgical masks, the N95 respirators filter out 95% of airborne particles, offering critical protection for those in contact with patients infected with the virus, according to the CDC.

For first responders in major cities, the threat of running out before more masks become available has bred austerity protocols that some fear put them at greater risk of infection. Minneapolis firefighters, often first to respond to medical emergencies, have lamented being told to limit use of the masks to certain types of calls.

In April, responding to lawmakers and hospitals blaming the federal government for the shortage, President Donald Trump advised medical workers to sanitize and reuse masks up to 20 times.

Trump also exercised his power under the Defense Production Act to order Minnesota-based 3M, a leading manufacturer of the N95s, to help FEMA meet its need for protective equipment, leading to a public clash between Trump and 3M.

TSA has meanwhile been sitting on 116,000 masks left over from the 2009 H1N1 flu outbreak, according to internal TSA documents dated April 27. Then Customs and Border Protection sent TSA another 1.3 million masks, the documents state.

All these masks have surpassed the manufacturer's recommended shelf life, but the CDC approved them as still effective against the virus, according to the TSA documents. "These N95s will be available to any employee who decides to voluntarily wear one and completes their required training."

Air travel has plummeted during the pandemic. TSA data shows the number of travelers passing through their checkpoints has declined by more than 90% compared to the same days in 2019.

About six weeks ago, TSA officials said in a conference call they planned to donate the surplus masks to health care workers, according to Kielkopf, who was on the call. At the time, TSA still only had the masks left over from 2009.

"But then something happened at headquarters," he said. "It went from us trying to donate things to us taking them."

As an attorney for TSA, Kielkopf said safety is paramount for the workers he represents on the front lines of security. But TSA's internal documents say the use of N95 masks is not necessary for its workers, per CDC guidance.

"We have them, but very, very, very few screeners are using them," he said. "So why do we have all these N95 masks when health care workers are saying they don't have them?"

After he and others failed to persuade TSA officials to donate the surplus masks, Kielkopf said he felt no choice but to file the whistleblower complaint.

"I would like [the special counsel] to expose this issue and have TSA give the n95 masks to FEMA for distribution so they can help fight the pandemic," he wrote in the complaint.

In a response Friday that Kielkopf shared with the Star Tribune, Special Counsel Office attorney Whitney Waters wrote that they couldn't confirm that TSA officials "acted outside of their discretion" in keeping the reserve masks. The complaint also did not prove that TSA agents won't eventually choose to start using the N95 masks in the future. "Therefore, we will take no further actions in this matter."

Kielkopf replied to Waters that he planned to appeal the decision. In an interview, he said he's loyal to his employer and loves his job. But he believes it's his duty as a civil servant to speak up when lives are on the line.

"What I want is masks not to be sitting in a warehouse," he said.