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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
WESTERN REGIONAL OFFICE __________________________________________ ) ROBERT J. MACLEAN, ) DOCKET NUMBER: Appellant, ) SF-0752-06-0611-I-1 )
v. ) ) ADMINISTRATIVE
DEPARTMENT OF HOMELAND SECURITY, ) JUDGE: TRANSPORTATION SECURITY ) Franklin M. Kang ADMINISTRATION, ) Agency. ) ) September 1, 2009
AGENCY’S PRE-HEARING SUBMISSIONS1
In light of the Ninth Circuit’s Decision in MacLean v. Dep’t of Homeland
Security, 543 F.3d 1145 (Sept. 16, 2008) and the Opinion and Order of the Merit Systems
Protection Board in this case, 2009 MSPB 114 (June 22, 2009) (hereinafter Board
Opinion), the Agency respectfully submits that there remain only a few issues left to be
adjudicated by the Administrative Judge.
1. STATEMENT OF FACTS AND ISSUES
Issue 1: Whether the Agency established, by a preponderance of the evidence, that Appellant made an unauthorized disclosure of Sensitive Security Information.
Appellant admitted that on or about July 29, 2003, he disclosed to a journalist that
all RON [Remain Overnight] missions up to August 9, 2003 would be cancelled. AF,
Tab 4(J) at 11. The deciding official, Frank Donzanti, determined that the information
that Appellant disclosed constituted Sensitive Security Information (SSI) at the time of
Appellant’s disclosure. AF, Tab 4(A). When it became clear that Appellant was
challenging Donzanti’s determination that the disclosure was SSI, the Agency issued a 1 The Agency reserves the right to amend its Pre-hearing Submissions in the event that the Administrative Judge grants Appellant’s Motion to Compel and extends discovery.
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Final Order that confirmed that the disclosed information constituted SSI. Appellant
appealed the Final Order to the Ninth Circuit, and the Ninth Circuit denied Appellant’s
appeal by finding that the Final Order was valid. MacLean, 543 F.3d 1145 (2008). The
full Board recently determined that the Final Order was not subject to review by the
MSPB. Board Opinion at p. 11, ¶ 18 (“We find that the agency can meet its burden of
proof on the charge [that the information that the appellant disclosed met the regulatory
definition of SSI] because where, as here, a federal court has determined that information
relevant to a Board appeal constituted SSI, that determination is binding in the Board
proceeding.”).
It is undisputed that Appellant did not obtain authorization from the Agency to
make this disclosure of Sensitive Security Information. AF, Tabs 4(A), 4(G), 4(J). It is
further undisputed that Appellant also did not have protection under the Whistleblower
Protection Act to make this disclosure of Sensitive Security Information. Board Opinion
at p. 19, ¶ 33. It is therefore undisputed that the Agency has established the charge that
Appellant made an unauthorized disclosure of SSI.
Issue 2: Whether the deciding official properly exercised managerial judgment by considering the relevant Douglas factors, such that the Agency’s penalty selection should be afforded deference? The Board will not disturb an Agency’s action if it is the maximum reasonable
penalty that may be imposed after considering all the relevant factors. See Davis v. Dep’t
of the Treasury, 8 M.S.P.R. 317 (1981). “It is well established that the selection of an
appropriate penalty is a matter committed to the sound discretion of the Agency.” James
v. U.S. Postal Serv., 35 M.S.P.R. 97 (1987). The Board’s function is not to displace
management’s responsibility for discipline but to ensure that managerial judgment has
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been properly exercised within tolerable limits of reasonableness. Id. (citing Douglas v.
Veterans’ Admin., 5 M.S.P.R. 280, 302 (1981)).
The Board must give due weight to the Agency’s primary discretion in
maintaining employee discipline and efficiency, recognizing that the Board’s function is
not to displace management’s responsibility but to ensure that managerial judgment has
been properly exercised. Harris v. U.S. Postal Service, 2005 MSPB LEXIS 7490, **13-
14 (2005). The Board will modify a penalty only when it finds that the Agency failed to
weigh the relevant factors or that it clearly exceeded the bounds of reasonableness in
determining the penalty. Id.
Here, the Agency’s penalty determination must be afforded deference because the
Agency reached its decision only after considering the relevant Douglas factors, and
because the removal is within the parameters of reasonableness for Appellant’s egregious
misconduct. The deciding official found that Appellant’s prior performance and length
of service did not warrant mitigating the penalty of removal. AF, Tab 4(A) at 2. Rather,
as a law enforcement officer, Appellant was held to a higher standard of accountability
and responsibility, and his unauthorized disclosure of SSI demonstrated that he did not
satisfy that higher standard. Id. Donzanti did not believe that Appellant could be
rehabilitated, and also, he lost confidence in Appellant. Id. Therefore, the Agency
properly weighed the relevant Douglas factors and rendered a reasonable penalty under
the specific circumstances of this case.
Issue 3: Whether Appellant has demonstrated a harmful error in the Agency’s application of its procedures, that is likely to have caused the Agency to reach a conclusion different from the one that it would have reached in the absence or cure of that error.
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In an attempt to show harmful error, Appellant cited to the Agency’s Policies and
Procedures for Safeguarding and Controlling Sensitive Security Information, which refers
to the applicable regulations. IF at Tab 4(N). The Agency’s policy sets forth a dual
responsibility, whereby a person who creates a record containing SSI must include a
protective marking and limited distribution statement and likewise, a person who receives
an unmarked record containing SSI must apply such a marking and inform the sender of
its omission. Id. at p. 2.
The Board defines harmful error as “error by the agency in the application of its
procedures that is likely to have caused the Agency to reach a conclusion different from
the one it would have reached in the absence or cure of the error.” 5 C.F.R. §
1201.56(c)(3) (emphasis added). The burden is upon Appellant to show, by preponderant
evidence, that the error was harmful, i.e., that it caused substantial harm or prejudice to
his rights. Id.
In this case, Appellant cannot show that an SSI marking would have likely
caused the Agency to reach a different conclusion about his misconduct. In his response
to the Notice of Proposed Removal, Appellant explained to the deciding official that he
made the disclosure because he believed that the safety of the flying public was
compromised. IF, Tab 4(D) at p. 10. During his deposition, Appellant further explained
that he would not have even cared if the text message was classified—he would have
made the disclosure regardless: “It did not matter to me whether it was confidential, law
enforcement sensitive, SSI or classified information. It was breaking the law and it was
endangering life.” Transcripts, excerpts attached hereto as Agency Hearing Ex. 8.
Therefore, the undisputed record establishes that whether the text message was marked as
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SSI would not have affected Appellant’s behavior or the Agency’s response to his
misconduct.
Issue 4: Whether Appellant has come forward with any evidence that his speech was a matter of public concern, which outweighed the governmental interest in protecting the non-disclosure of Sensitive Security Information.2
Appellant urges that his disclosure of Sensitive Security Information was a matter
of public concern, protected by the First Amendment. The Board has indicated that, on
this issue, it is the likely conclusion that the Agency had a significant interest in
protecting the information at issue in the charge, namely Sensitive Security Information.
Order, dated December 23, 2008 at pp. 7-8.
To evaluate this affirmative defense, the Board balances the individual and
societal interests that are served when employees speak on matters of public concern with
the needs of government employers to attempt to perform their important public
functions. See Garcetti v. Ceballos, 547 U.S. 410, 420 (2006); Pickering v. Board of
Educ., 391 U.S. 563 (1968); Smith v. Dep’t of Transp., 106 M.S.P.R. 59 at ¶ 46 (2007).
The courts and the Board expressly have recognized, however, that employees’ free
speech rights must be balanced against the need of government agencies to exercise
“wide latitude in managing their offices, without intrusive oversight by the judiciary in
the name of the First Amendment.” Mings v. Dep’t of Justice, 813 F.2d 384, 387 (Fed.
Cir. 1987); Smith, 106 M.S.P.R. 59 at ¶ 46.
Speech that is related to any matter of political, social, or other concern to the
community may be considered a matter of public concern. Connick v. Meyers, 461 U.S. 2 Appellant seems poised to make a new argument, that his union membership and leadership role in the Federal Air Marshal chapter of the Federal Law Enforcement Officers Association (FLEOA) was the basis of his removal. In light of the charge which has been sustained, it is apparent that Appellant was removed for his action of disclosing SSI, rather than for his speech or association.
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138, 146 (1983). In this case, however, the Agency submits that while FAM coverage for
Remain Overnight missions may be a matter of public concern – generally speaking – the
exact nature of any particular deployment or mission is not. As fully recognized by the
Board, such is Sensitive Security Information by regulatory definition and can only be
learned by those with a regulatory need to know. Board Opinion at p. 8, ¶ 13.
Moreover, the state interest in protecting against SSI disclosures is evident from
the face of the statute authorizing the Agency’s administrator to prescribe regulations
prohibiting the disclosure SSI. Board Opinion at p. 6, ¶ 10. The specific state interest in
this case, maintaining the confidentiality of FAMS deployment was harmed as soon as
Appellant made his disclosure to a journalist. Should the Agency or any other
governmental employer be prohibited from imposing discipline for unauthorized SSI
disclosures, there would be no deterrence whatsoever. By analogy, the Agency cites to
cases where it has been recognized that, “there is no First Amendment right to have
confidential, sealed or classified information leaked to the public.” United States v.
Koubriti, 307 F. Supp. 2d. 891, 900 (E.D. Mich. 2004); also see Snepp v. United States,
444 U.S. 507, 508-09 & n.3 (1980) (sustaining restrictions on the publication of
confidential information by former CIA employee, regardless of whether the materials
were actually classified); United States v. Aguilar, 515 U.S. 593, 606 (1993) (“As to one
who voluntarily assumed a duty of confidentiality, governmental restrictions on
disclosure are not subject to the same stringent standards that would apply to efforts to
impose restrictions on unwilling members of the public.”); Am. Library Ass’n v. Faurer,
631 F. Supp. 416 (D.C. 1986) (no First Amendment right exists where disclosure of
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classified information would possibly endanger the national security, even though the
information had been previously in the public domain).
When Appellant spoke to that news reporter and disclosed SSI, he single-
handedly exposed the nation to another terrorist attack—by broadcasting exactly which
flights would be unprotected by an on-board Federal air marshal. As a result of
Appellant’s action, the Under Secretary effectively lost the discretion to determine when
and where to deploy Federal Air Marshals. Therefore, applying the balancing test, the
governmental interests overwhelmingly outweigh any free speech interest that Appellant
may enjoy.
2. LIST OF ALL AGREED UPON MATERIAL FACTS The Agency proposes that the following fact may be stipulated to between the
parties:
A. That for the July 29, 2003 article, Appellant informed reporter Brock Meeks that all Las Vegas Federal Air Marshals were sent a text message to their government-issued mobile phones that all RON [Remain Overnight] missions up to August 9 would be canceled.3
The parties, however, have only agreed upon the following fact:
B. That the subject text message did not include any SSI marking or limited distribution statement.
3. LIST OF WITNESSES AND EXPECTED TESTIMONY
A. Frank Donzanti: As the acting Special Agent in Charge of the Los Angeles
Field Office, Donzanti was the deciding official in this matter. He will testify as to the disciplinary decision of removal, and that Appellant knew or should have known that the information disclosed met the regulatory definition of Sensitive Security Information.
B. Complainant: The Agency will call Appellant as part of its case-in-chief, to
testify that he engaged in the misconduct and that he would have engaged in
3See Apellant’s sworn affidavit at Tab 4(J) at 11. Also, MacLean, 543 F.3d at 1148.
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that same misconduct regardless of the SSI nature of the information disclosed.
4. LIST OF EXHIBITS Number Description 1 Delegation Order
2 Except of Standard Operating Procedures
3 Federal Air Marshal Service Directive re Employee
Responsibilities and Conduct
4 Vacancy Announcement Number
5 Employee Performance Agreement for performance period November 17, 2002 to November 16, 2003
6 Performance Agreement for Other Employees for performance period May 19, 2003 to September 30, 2003
7 Employee Performance Agreement for performance period May 18, 2003 to September 30, 2003
8 Excerpts of Appellant’s Deposition
Respectfully Submitted, September 1, 2009 By: ____/s/_________________________
Eileen Dizon Calaguas Agency Representative
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CERTIFICATE OF SERVICE
I certify that the attached Pre-Hearing Submissions and accompanying Exhibits were sent as indicated this 1st day of September 2009 to each of the following: Appellant Via E-file Robert J. MacLean Appellant’s Representative Via E-file Peter H. Noone, Esq. Patrick Tinsley Avery, Dooley, Post & Avery, LLP Board Via E-file Hon. Franklin Kang Administrative Judge Western Regional Office ____________/s/______________________ Eileen Dizon Calaguas Attorney-Advisor, Office of Chief Counsel Transportation Security Administration San Francisco Mission Support Center 450 Golden Gate Avenue, Suite 1-5246
P.O. Box 36018 San Francisco, CA 94066 (415) 503-4602 (office) (415) 554-9501 (facsimile)
eileen.calaguas@dhs.gov
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Agency Hearing Ex. 2 MacLean v. DHS, pg. 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 14 of 42
Agency Hearing Ex. 2 MacLean v. DHS, pg. 2P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 15 of 42
Agency Hearing Ex. 2 MacLean v. DHS, pg. 3P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 16 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 17 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 2P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 18 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 3P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 19 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 4P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 20 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 5P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 21 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 6P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 22 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 7P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 23 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 8P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 24 of 42
Agency Hearing Ex. 3 MacLean v. DHS, pg. 9P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 25 of 42
Agency Hearing Ex. 4 MacLean v. DHS, page 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 26 of 42
Agency Hearing Ex. 4 MacLean v. DHS, page 2P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 27 of 42
Agency Hearing Ex. 4 MacLean v. DHS, page 3P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 28 of 42
Agency Hearing Ex. 5 MacLean v. DHS, page 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 29 of 42
Agency Hearing Ex. 5 MacLean v. DHS, page 2P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 30 of 42
Agency Hearing Ex. 5 MacLean v. DHS, page 3P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 31 of 42
Agency Hearing Ex. 6 MacLean v. DHS, page 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 32 of 42
Agency Hearing Ex. 6 MacLean v. DHS, page 2P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 33 of 42
Agency Hearing Ex. 6 MacLean v. DHS, page 3P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 34 of 42
Agency Hearing Ex. 7 MacLean v. DHS, page 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 35 of 42
Agency Hearing Ex. 7 MacLean v. DHS, page 2P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 36 of 42
Agency Hearing Ex. 7 MacLean v. DHS, page 3P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 37 of 42
Agency Hearing Ex. 7 MacLean v. DHS, page 4P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 38 of 42
Agency Hearing Ex. 8 MacLean v. DHS, page 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 39 of 42
Agency Hearing Ex. 8 MacLean v. DHS, page 2P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 40 of 42
Agency Hearing Ex. 8 MacLean v. DHS, page 3P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 41 of 42