MacLean v. DHS: MSPB Agency Response to MacLean Petition for Review - August 2, 2010

ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY

Docket # SF-0752-06-0611-I-2

Response to Appellant's Corrected PFR dated 6/21/2010

Summary Page

Case Title : ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY

Docket Number : SF-0752-06-0611-I-2

Pleading Title : Response to Appellant's Corrected PFR dated 6/21/2010

Filer's Name : Eileen Dizon Calaguas, Esq.

Filer's Pleading Role : Agency Representative

Details about the supporting documentation

N/A

P leading N umber : 2010017114 S ubmission date : 2010-08-02 19:26:41 C onfirmation N umber: 1444054210 page 1 of 31


Table of Contents


Table of Contents


Table of Contents


Table of Contents

ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY

Docket # SF-0752-06-0611-I-2

Response to Appellant's Corrected PFR dated 6/21/2010

Online Interview

1. Would you like to enter the text online or upload a file containing the pleading?

See attached pleading text document

2. Does your pleading assert facts that you know from your personal knowledge?

No


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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

__________________________________________

ROBERT J. MACLEAN, ) DOCKET NUMBER: Appellant, ) SF-0752-06-0611-I-2 )

v. ) )

DEPARTMENT OF HOMELAND SECURITY, ) TRANSPORTATION SECURITY ) ADMINISTRATION, ) Agency. ) ____________) August 2, 2010

AGENCY’S RESPONSE TO APPELLANT’S PETITION FOR REVIEW

The Agency opposes Appellant’s Petition for Review in its entirety.1

I. INTRODUCTION

The Administrative

Judge properly found that this law enforcement officer engaged in serious misconduct when he

purposely sought out a news reporter to disclose confidential information about covert Agency

security missions. The Initial Decision to uphold Appellant’s removal is based on a correct

interpretation of statute and regulation. Moreover, the Administrative Judge’s comprehensive

analysis is well-supported by the extensive record, which in no way should be supplemented

with evidence that was readily available prior to the record’s closing.

Characterizing his unauthorized disclosure of Sensitive Security Information (SSI) as a

“mistake” or “good faith confusion,” Appellant now urges the Board to accept his re-

characterization of prior admissions as just another misunderstanding on his part. The

evidentiary record does not support Appellant’s rhetoric. There is no basis to overturn the Initial 1 Cites herein are made to Appellant’s “Corrected Petition for Review,” filed June 21, 2010. The Agency does not oppose this late submission to the extent that Appellant provides more accurate citations to the record.


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Decision because it is fully supported by the record below. There is no reason for the Board to

overturn its own precedence or otherwise ignore a Court of Appeal decision, both of which

establish the law of the case here.

II. STANDARD OF REVIEW

The Board may only grant a petition for review when (1) new and material evidence is

available that, despite due diligence, was not available when the record closed; and (2) the

decision of the judge is based on an erroneous interpretation of statute and regulation. 5 C.F.R.

§ 1201.115(d).

III. STATEMENT OF PERTINENT FACTS

1. Appellant was a Federal Air Marshal (FAM), a law enforcement officer required

by federal regulation and Agency policy to protect the disclosure of Sensitive Security

Information (SSI) to only those with a regulatory need to know. Initial Appeal File 1 (IAF-1),

Tab 4 at Subtabs 4M, 4N, 4T, 4U (Agency File); Hearing Exs. 2 and 3.

2. Cancellation of all Las Vegas RON (Remain Overnight) missions up to August 9,

2003 was SSI. MacLean v. Dep’t of Homeland Sec., 543 F.3d 1145 (9th Cir. 2008); Initial

Appeal File 2 (IAF-2), Tab 17 at Ex. A (Agency Final Order).

3. By sworn affidavit, Appellant admitted to Agency investigators that he disclosed

to a news reporter, on or about July 29, 2003, that all Las Vegas RON missions up to August 9,

2003 would be cancelled. IAF, Tab 4, Subtab 4J at p. 11. He affirmed this admission when

responding to the proposal to remove him. IAF-1, Tab 4, Subtab 4C at p. 3.

4. A news reporter is not a person with a regulatory need to know SSI, and

Appellant did not have authorization from the Agency to make the above-referenced disclosure

of SSI. IAF-1, Tab 4, Subtab 4C at p. 3 and Subtab 4M.


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5. Prior to making the final decision to remove Appellant, the deciding official

within the Federal Air Marshal Service (FAMS), Frank Donzanti, considered the relevant

Douglas factors in accordance with the Agency’s policy (IAF-1, Tab 4, Subtab 4Q at p. 6), as

follows:

a. The nature and seriousness of the offense, and its relation to the employee’s duties,

position, and responsibilities:

“Well, he gave information on our—on our flights, a particular group of flights that were not covered, which created a vulnerability. As soon as he gave that information out to the media, it created a vulnerability within the aviation system. And it set us up for a possible another 9/11 incident. . . . It gave people that would want to do us harm information that certain flights weren’t covered by Air Marshals. And if you look at that, it makes the system vulnerable, especially with flights leaving out of Las Vegas, knowing that certain flights aren’t covered, long-distance flights are not being covered by Air Marshals.

Tr. at 15:12-24.

b. The employee’s job level and type of employment:

“As a Federal Air Marshal he’s held to a higher standard of public trust . . . and he’s in a public safety position. And his responsibility is to safeguard information, such as SSI.”

Tr. at 17:22-25.

c. The employee’s past disciplinary record:

“I also considered that you have no previous discipline with the FAMS . . . .”

IAF-1, Tab 4, Subtab 4A at p. 2.

d. The employee’s past work record:

“I considered your combined 14 years of military and civilian federal service, including your 5 years as a Federal Air Marshall . .


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. . and that your previous performance appraisals were satisfactory.”

IAF-1, Tab 4, Subtab 4A at p. 2.

e. The effect of the offense upon the employee’s ability to perform at a satisfactory

level, and its effect upon supervisors:

“I lost confidence in the fact that he could not be trusted with SSI in any FAM position, or actually, any administrative position in TSA. You have access to SSI on a daily basis.”

Tr. at 21:23-22:1.

f. Consistency of the penalty with those imposed upon other employees for the same or

similar offenses:

“I would be in the position, but we didn’t have any incidents [of others who may have disclosed sensitive security information without authorization] when I was there.”

Tr. at 19:6-11.

g. The notoriety of the offense or its impact upon the reputation of the Agency;

“[P]eople would tend to have less confidence in the ability of the Federal Air Marshal Service to protect the skies. . . . And I think this kind of undermined what we’re all about.”

Tr. at 19:19-25.

h. The clarity with which the employee was on notice of any rules that were violated in

committing the offense or had been warned about the conduct in question.

“Well, he should have been aware of it. He had—the two years in the FAM Service when this occurred, he had ample opportunity to understand that policy through the Academy, through our extensive legal training that we have in the field offices. So many hours of legal training that – that’s provided. When you first come on the job, you’re given a briefing. And it’s very common knowledge and very basic. If nothing else, a Federal Air Marshal did not divulge schedules or anything that has to do with flight schedules. It’s common knowledge for every FAM, FAM wide. It


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wouldn’t be some obscure security regulation that you would really have to study up on it to understand it. This is—this is just very basic, very common.”

Tr. at 20:6-19; also IAF-1, Tab 4, Subtab 4T.

i. Potential for the employee’s rehabilitation:

“I did, but he expressed no remorse throughout the proceedings. Even – even to this date here, he has no remorse whatsoever. So I did consider that in my decision.”

Tr. at 20:22-24.

j. Mitigating circumstances surrounding the offense:

“He thought there was a vulnerability created in the system when there was—when those types of missions were dropped, when they were not covered. But he is not in a position—he does not have all information. He’s not in a position to make that kind of decision. There are other factors that go into that decision he would be unaware of.”

Tr. at 21:9-16.

k. The adequacy and effectiveness of alternative actions to deter such conduct or

improve performance in the future by the employee or others.

“I found nothing at all that could accommodate him, should I decide to give him some kind of lesser punishment. In a practicality sense, there was nowhere to put him . . . and I think we all lost confidence in his ability at that point.”

Tr. at 22:2-6.

IV. ARGUMENT

First, this Board should not consider any purportedly new evidence that Appellant

proffered by Appellant after the close of hearing, because, in fact, such evidence was not new but

available to Appellant prior to hearing. Second, the Administrative Judge properly defined the

Agency’s disciplinary charge and its required elements, consistent with the law of the case as


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established by the Ninth Circuit and a prior Board decision. Third, the record fully supports a

finding that the Agency established, by preponderant evidence, the requisite nexus; as such, the

Administrative Judge correctly deferred to the Agency’s reasonable disciplinary penalty that was

reached only after careful consideration of the relevant Douglas factors. Fourth and finally,

Appellant failed to prove his affirmative defenses.

A. Appellant fails to provide any new and material evidence.

In support of his Petition, Appellant requested to supplement the record with transcripts

of his May 4, 2005 interview conducted by Agency investigators, and Appellant also sought to

include an undated organizational chart. This post-hearing request to supplement should be

denied in its entirety.

Appellant cannot meet the procedural requirement to establish that such evidence is

“new” within the meaning of Section 1201.115. To illustrate, Appellant had possession of the

proffered transcripts since about April 12, 2006. See Petition for Review File (PFRF), Tab 2 at

p. 71 (Appellant’s Supplement to PFR). Also, because his misconduct and discipline took place

in 2003 and 2006 respectively, any proffered organizational chart must cover that same period to

be relevant, and as such, Appellant should have offered such an organizational chart during the

2009 hearing in this matter. Thus, Appellant’s post-hearing request to supplement the record

must be denied.

B. Appellant fails to show any error in the exclusion of evidence.

Likewise, the Administrative Judge properly excluded additional evidence proffered

well-after the record closed, and the Board should leave such a procedural ruling undisturbed.

IAF-2, Tab 83 at pp. 8-11 (Initial Decision); see Grassell v. Dep’t of Transp., 40 M.S.P.R. 554,

563-64 (1989) (Evidence that is untimely for the Administrative Judge because it is not new and


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material will also be untimely for the Board in a petition for review). By way of a post-hearing

motion, Appellant attempted to introduce evidence about alleged misconduct by deciding official

Frank Donzanti.

Through cross-examination of Donzanti, however, Appellant had the prior opportunity to

introduce such evidence in support of his theory that Donzanti acted as an instrument for then

FAMS Director Thomas Quinn’s alleged retaliatory motive. IAF-2, Tab 83 at p. 11. He failed to

question Donzanti about Director Quinn’s alleged retaliatory motive and instead brought a post-

hearing motion in an effort to establish that Donzanti received a demotion or reassignment.

PFRF, Tab 3 at pp. 39-40 (Corrected PFR). Importantly, the Administrative Judge noted that

Donzanti held a different position at the time of hearing than at the time of his removal decision,

and thus, that change in position was irrelevant. IAF-2, Tab 83 at p. 10.

The Administrative Judge also properly excluded other evidence proffered by Appellant,

which Appellant inappropriately referred to in support of his Petition. For example, Appellant

repeatedly cited to deposition testimony that was rejected by the Administrative Judge and

removed from the record. See IAF-2, Tab 70 at p. 2 (Order, dated Oct. 27, 2009); compare

PFRF, Tab 3 at p. 49 (citing to Ex. F, which was rejected by the Administrative Judge).

Appellant neglected to explain how the Administrative Judge erred in rejecting such evidence,

and indeed, there is no basis to disturb the Administrative Judge’s evidentiary ruling. Appellant

had the opportunity to call deponents as hearing witnesses, and of these deponents, he only chose

to call the deciding official and himself as hearing witnesses. See IAF-2, Tab 70 at p. 4.

Finally, any further reliance upon Director Quinn’s and Appellant’s own deposition

testimony is inappropriate at this procedural stage. See, e.g., PFRF, Tab 3 at pp. 11-13, 49.

Such deposition testimony is not “new” as required by Section 1201.115, and even if admitted,


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deposition transcripts should carry little or no weight when compared to live testimony. See,

e.g., Wallace v. Dep’t of Health & Human Servs., 89 M.S.P.R. 178, ¶ 15 (2001) (Board generally

favors live testimony over hearsay.).

C. The Administrative Judge properly found that charge did not require the Agency to prove intent.

In short, Appellant appears to argue that the Administrative Judge framed the Agency’s

disciplinary charge incorrectly, by removing an intent element that the Ninth Circuit somehow

added. Appellant, however, misinterprets the Ninth Circuit’s dicta, which does not affect the

Agency’s burden of proof to establish that Appellant engaged in the charged misconduct.

In MacLean v. Department of Homeland Security, 543 F.3d 1145, 1150 (Sept. 16, 2008),

the Ninth Circuit found that information falling within the Agency’s regulatory definition is

“automatically considered sensitive security information.” IAF-2, Tab 83 at p. 6. This Board

then opined in its interlocutory appeal decision: “We find that the agency can meet its burden of

proof on the charge 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.” MacLean v. Dep’t of Homeland Sec., 2009 M.S.P.B. 114, ¶ 18 (June 22, 2009).

While the Ninth Circuit mentioned Appellant’s oft-repeated contention that he held a

“good faith belief” that the information he disseminated did not qualify as SSI, the court did so

only within the context of discussing Appellant’s affirmative defense under the Whistleblower

Protection Act (WPA), which requires that the employee have a “reasonable belief.” 5 U.S.C.

§ 2302(b)(8).

Maclean is not entitled to procedural due process. The order was the result of an agency adjudication . . . and does not directly deprive him of any liberty or property interests in his position as a Federal Air Marshal. It merely designates information as “sensitive security information,”


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which has only a tangential relation to MacLean’s interest in his position as an Air Marshal. MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act and contend that the lack of clarity of the TSA’s 2003 “sensitive security information” regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as “sensitive security information.”

MacLean, 543 F.3d at 1151-52 (emphasis added). After the Ninth Circuit’s ruling, the Board

resolved any remaining ambiguity and, as law of this case, found that Appellant’s misconduct

was not protected by the WPA: Appellant’s disclosure “in violation of the regulations governing

SSI . . . cannot give rise to whistleblower protection.” MacLean, 2009 M.S.P.B. 114 at ¶ 33.

The law of the case doctrine “limits re-litigation of an issue once that issue has been decided. . .

in a different stage of the same litigation.” Philips v. Dep’t of Navy, 111 M.S.P.R. 557, fn. 2

(2009) citing Nease v. Dep’t of Army, 103 M.S.P.R. 118, ¶ 10 (2006). Therefore, Appellant’s

alleged “good faith belief” is relevant only when considering the Douglas factors, as further

discussed below.

The Agency charged Appellant with the “unauthorized disclosure of sensitive security

information.” IAF-2, Tab 64 at p. 5 (Order & Summary of Prehearing Conf., dated Oct. 8,

2009). The accompanying specification to this disciplinary charge quoted directly from the

sworn affidavit that Appellant provided to Agency investigators, wherein he voluntarily admitted

to the specified allegations: “For the July 29, 2003 article, I informed Brock Meeks that all Las

Vegas FAMs were sent a text message to their Government issued mobile phones that all RON

(Remain Overnight) missions up to August 9 would be canceled.” Compare IAF-1, Tab 4,

Subtab 4A at p. 1 and Subtab 4J at p. 11.

The disciplinary charge here does not require a showing of intent. See, e.g., Hamilton v.

U.S. Postal Serv., 71 M.S.P.R. 547, 555-57 (1996) (holding that a charge of failure to follow


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instructions does not turn on proof of intent). As stated, the charge refers to the Agency’s

regulations, and these regulations make no distinction between intentional and negligent

disclosures of Sensitive Security Information; rather, the SSI regulations call for the protection of

such information from any unauthorized disclosures to those individuals without a regulatory

need to know. See 14 C.F.R. Part 191 (West 2001).

Therefore, Appellant’s attempt to characterize his SSI disclosure as inadvertent does not

change the conclusion already made by the Ninth Circuit, that Appellant violated the applicable

regulations. Similar to a charge of failure to follow instructions, the unauthorized disclosure of

SSI does not turn on proof of intent; indeed, it is not an element of the Agency’s burden of proof.

Rather, and as correctly determined by the Administrative Judge, evidence of intent is

relevant only to the penalty determination. In Hamilton, the Board found that when an agency

proves that an employee’s failure to follow instructions was intentional rather than merely

negligent, then the agency is free to use that fact as an aggravating factor in the penalty selection.

71 M.S.P.R. 547. Likewise, in Quarters v. Department of Veterans Affairs, 97 M.S.P.R. 511 at

¶¶ 4, 5 (2004), the accidental nature of the appellant’s behavior – pulling out his government

credit card of a personal purchase by mistake – was only a mitigating factor. In that case, the

charge of unauthorized use of government property was sustained when the appellant admitted

that he made the personal purchase on his credit government credit card. Id.

In this case, not only was the disciplinary charge clear, specific, and fully-described by

additional allegations set forth in the accompanying specification, Appellant clearly understood

the charge as he both repeated and admitted (again) to the underlying facts in response to his

proposed removal:


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Reason 3 charges FAM McClean [sic] with “unauthorized disclosure of sensitive security information,” when on July 3, 2003, he disclosed to the “media” that all Las Vegas FAMS were sent a text message to their government issued mobile phones that all “remain overnight” missions up through August 9, 2003 would be canceled, or words to that effect. The underlying factual predicate supporting each of the reasons is not contested by FAM McClean [sic].

IAF-1, Tab 4, Subtab 4C at p. 3 (emphasis added); see, e.g., Lockett v. U.S. Marine Corps, 37

M.S.P.R. 427 (1988) (appellant’s response and defense were viewed as confirming the agency’s

version of the charge).

In turn, the Administrative Judge properly determined the essence of this charge and so

informed the parties prior to hearing. As noted by the Administrative Judge, to prove this

charge, the Agency was required to show that Appellant engaged in the conduct with which he

was charged. IAF-2, Tab 64 at p. 5 (Order & Summary of Prehearing Conference, dated Oct. 8,

2009, citing to Otero v. U.S. Postal Serv., 73 M.S.P.R. 198 (1997)).

D. The Administrative Judge correctly found that the Agency proved the disciplinary charge by preponderant evidence.

The record fully supports the Administrative Judge’s finding that the Agency met its

burden to prove its sole disciplinary charge. Appellant’s own hearing testimony was sufficient to

meet the preponderance standard. To illustrate, Appellant testified and the Administrative Judge

cited to the following:

• Prior to his misconduct, Appellant received training on the Agency regulations and policy for maintaining the confidentiality of Sensitive Security Information. Tr. at 69-70 (direct testimony), 100; IAF-2, Tab 83 at p. 12; also see IAF-1, Tab 4 at Subtab 4N. • Prior to his misconduct, Appellant understood that disclosing the known absence of a Federal Air Marshal on a particular flight created a harm. Tr. at 104; IAF-2, Tab 83 at p. 13; also see AF, IAF-1, Tab 4 at Subtab 4T.


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• Despite a new denial that he informed a news reporter that RON missions out of Las Vegas were being cancelled, Appellant intentionally sought out that reporter and expected the reporter to publicize the information that Appellant provided. Tr. at 104-106, 120-121; IAF-2, Tab 83 at p. 17. • Appellant conceded that that news reporter was not authorized to receive Sensitive Security Information. Tr. at 106; IAF-2, Tab 83 at p. 19; also IAF-1, Tab 4 at Subtab 4M. • Appellant showed no remorse for having made his disclosure to the news reporter. Tr. 109; IAF-1, Tab 4, Subtab 4J at p. 14; Hearing Ex. 8 and also Hearing Ex. A at p. 2 (“‘But I have no regrets. I did the right thing,’” said Mr. MacLean . . . .); IAF-1, Tab 83 at p. 18.

Appellant’s attempts to re-cast his repeated admissions are of no consequence and, as further

discussed below, only show that the deciding official properly afforded little weight to the

so-called “accidental” nature of Appellant’s disclosure of SSI. Tr. at 16.

Indeed, the Administrative Judge’s credibility determination of Appellant is well-

supported by the record of evidence to which the Administrative Judge cited with specificity.2

Q. And—and in responding or—in responding to the proposed removal, you didn't express any regret or remorse for having made the disclosure that you did, did you?

To illustrate, the inconsistencies in Appellant’s statements are easily observed; one need only

compare Appellant’s 2005 sworn affidavit and his 2006 deposition testimony regarding his lack

of remorse (IAF-1, Tab 4, Subtab 4J at p. 13; Hearing Ex. 8 at p. 2), with the self-serving regret

(for his family) that he expressed at the 2009 hearing.

A. That’s what I said in my testimony, but it doesn’t mean I have remorse for this day.

Q. Are you saying today that you’re remorseful?

2 Contrary to Appellant’s assertions (PFRF, Tab 3 at p. 20), the Administrative Judge provided citations to the hearing. That the Administrative Judge cited to the audio recording (hearing compact disc) rather than the more expensive written transcripts of the hearing is irrelevant.


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A. I have a lot of regret and remorse of what I put my—of what this has put my family through. I didn’t realize my actions were going—were going to have these consequences years later.

Q. But at the time—

A. So—

Q. But that's today, and it wasn’t at that time that you—when you had the opportunity to respond directly to Mr. Donzanti; isn’t that right?

A. I believed there was—there was a violation of law and a danger to—to public safety and national security at the time.

Q. So at the time you didn’t have any regrets?

A. No, ma’am, I didn’t have any regrets when you—when—when you deposed me or the investigators spoke to me about my disclosure.

Tr. at 109-110. As explained in Hillen v. Department of Army, 35 M.S.P.R. 453 (1987), the very

fact that an inconsistency exists raises doubt as to the truthfulness of both statements. 35

M.S.P.R. at 458.

To further illustrate, Appellant’s proclaimed unawareness of the SSI-nature of his

disclosure is contradicted by his own explanation of his SSI training and understanding of what

constitutes Sensitive Security Information. In describing how he knew to maintain the

confidentiality of his own FAM schedule (Tr. at 69-71, 100-102), Appellant corroborated the

deciding official’s testimony—that Appellant handled SSI on a daily basis (Tr. at p. 21) and that

the SSI-nature of FAMS scheduling was basic, common knowledge (Tr. at p. 19). Appellant’s

repeated accusations of others’ making unauthorized disclosures also show how, at the time of

his own unauthorized disclosure, he knew how to identify SSI even without any labeling. Tr.

111-112; IAF-1, Tab 4, Subtab 4J at p. 12. Hillen teaches that inherent improbabilities may be

rejected, and based on the record evidence here, there is little likelihood that Appellant was

unaware of the SSI nature of his disclosure to a news reporter. 35 M.S.P.R. at 458.


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In this case, the Administrative Judge clearly identified the factual questions in dispute,

summarized the evidence on each disputed question, stated the version he believed, and

explained in detail why he found the Agency’s version more credible than Appellant’s. IAF-2,

Tab 83 at pp. 17-18.

E. The Administrative Judge correctly deferred to the Agency’s choice of penalty—removal, which was within the parameters of reasonableness.

The Agency’s penalty determination is entitled to deference and should be reviewed only

to determine whether it is within the parameters of reasonableness. Payne v. U.S. Postal Serv.,

72 M.S.P.R. 646, 650 (1996). The Board’s function with regard to its review of an agency’s

penalty selection is not to displace management’s responsibility but to determine whether

management exercised its judgment within the tolerable limits of reasonableness. Cameron v.

Dep’t of Justice, 100 M.S.P.R. 477, 482 (2005). In this case, removal is well-within

reasonableness.

1. The Administrative Judge correctly found a nexus to the efficiency of the service.

That a nexus exists between Appellant’s misconduct and his removal to promote the

efficiency of the service cannot seriously be disputed. Nonetheless, Appellant argues that the

Administrative Judge implicitly found that it was his cited misconduct that increased the

efficiency of the service, rather than his removal. PFRF, Tab 3 at p. 47.

Appellant’s rationalization defies common sense, and he contradicts himself. See Hillen

v. Dep’t of Army, 35 M.S.P.R. at 458. Appellant emphatically testified, “If I told somebody that

a particular flight was not going to have any protection on it, that endangered that specific

flight.” Tr. at 104. And yet, that is exactly what Appellant did. He told a journalist that remain


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overnight missions out of Las Vegas would not have Federal Air Marshals on board, and by his

own account, he endangered those specific Las Vegas flights.

In turn, the Administrative Judge properly found that Agency resources were necessarily

reallocated to address those very flights that Appellant disclosed would no longer have FAM

coverage aboard. IAF-2, Tab 83 at pp. 26-27. At hearing, the deciding official explained the

reality of the situation, that in Appellant’s position, Appellant was not privy to the type of

information that higher-level Agency officials relied upon in deciding how to allocate finite

resources. Tr. at 20. As further discussed below, Appellant always had the right to express his

opposition—he just needed to do so without divulging SSI.

2. The Administrative Judge correctly found that the deciding official considered the relevant factors and that a mitigated penalty was unwarranted.

The record fully supports a finding that the deciding official considered the relevant

Douglas factors. The Initial Decision correctly noted that the deciding official considered the

nature and seriousness of the offense, inasmuch as Appellant’s disclosure directly related to

Appellant’s law enforcement duties, position, and responsibilities as a Federal Air Marshal.

IAF-2, Tab 83 at p. 30. Appellant cannot deny that he intentionally contacted a news reporter, to

purposely convey information about the absence of FAMS’ deployment. That this information

constituted Sensitive Security Information also cannot be disputed. See MacLean, 543 F.3d

1145.

The Ninth Circuit already rejected Appellant’s excuse that he remained unaware that

what he disclosed constituted Sensitive Security Information because it lacked any SSI marking.

With a simple common-sense observation, one justice commented from the bench: “You’re

telling Mr. Osama bin Laden that there will be no air marshals anywhere on any of our airplanes


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for the next 10 days.” http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id0000000190

at 4:51-6:09 of audio file. The deciding official also testified about the obvious, that “[a]soon as

[Appellant] gave that information out to the media, it created a vulnerability within the aviation

system. And it set us up for a possible another 9/11 incident.” Tr. at 15.

Appellant himself echoed this same security assessment when he testified that if he told

somebody that a particular flight was not going to have any FAM protection, that that

endangered that specific flight. Tr. at 104. And yet, while recognizing this same clear danger,

Appellant stated under oath that he had “NO REGRETS or feel NO REMORSE” (IAF-1, Tab 4,

Subtab 4J at p. 13 (emphasis in original)) or that he even cared whether the information

conveyed was Sensitive Security Information. Hearing Ex. 8 at p. 2; also see Hillen, 35

M.S.P.R. at 458. Thus, the deciding official properly determined that Appellant’s actions were

intentional and as such, could not be mitigating. Tr. at p. 15.

The absence of any malice or gainful motive or any repeated disclosures of SSI failed to

mitigate the penalty to a lesser penalty and rightfully so. Tr. at 16. Appellant was a law

enforcement officer whom, by virtue of his position, the public trusted (Tr. at 18-19), and the

deciding official properly held him to that higher standard. See Scott v. Dep’t of Def., 69

M.S.P.R. 211 (1995). Most significantly and as previously discussed, Appellant testified about

his FAMS training and experience with Sensitive Security Information, which was to such a

degree that he undeniably had warning about the conduct in question and in fact, received (but

chose not to read in its entirety) the Agency’s policy to safeguard SSI. Tr. at 71. Appellant’s

argument that he never received actual notice of the Agency’s policy to safeguard SSI is baseless

as Appellant is charged with knowing the law, including the applicable SSI regulation in this


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case. See Stearn v. Dep’t of Navy, 280 F.3d 1376 (Fed. Cir. 2002) (applying constructive notice

of regulations).

The record further shows that the deciding official properly considered the other relevant

Douglas factors and found them to be mitigating: that Appellant lacked any prior discipline, his

work history, his length of service, and his satisfactory performance on the job. Tr. at 14, 17.

Such mitigating factors, however, failed to outweigh the seriousness of Appellant’s admitted

misconduct, for which Appellant lacked any remorse whatsoever. See, e.g., Ramirez v. Dep’t of

Homeland Sec., 2007 M.S.P.R. 4254 (2007) (law enforcement officer’s lack of remorse and

rationalizations weighed against rehabilitative potential).

And, while other Federal Air Marshals from other FAMS field offices may have

disclosed Sensitive Security Information, the circumstances in which they did so was never

known to the deciding official at the time of his decision and more significantly, were so

substantially different that no valid comparison exists. See Woebcke v. Dep’t of Homeland Sec.,

M.S.P.B. Docket No. NY-072-09-0128-I-1 (2010). Indeed, Appellant’s comparisons to Frank

Terreri, another vocal member of the Federal Law Enforcement Officer Association, is not valid.

Unlike Appellant, Terreri did not disclose SSI, and as further discussed below, Terreri remains

with the Agency and continues to report to the deciding official.

The Administrative Judge properly distinguished the remaining alleged comparators. In

the case of J.S., this employee disclosed his and his partner’s FAM identity to a fellow aircraft

passenger. IAF-2, Tab 43, Subtab MM (Appellant’s Response to Statement of Facts). J.S. made

this disclosure to avoid a panic when the passenger observed his weapon. Id. at pp. 84-85. In

the case of J.M, this employee disclosed his own FAMS-flight scheduling to coordinate romantic

rendezvous with flight attendants. IAF-2, Tab 49 (Appellant Response to Pre-Hearing


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Submissions). Both disclosures are limited in scope and cannot be compared to Appellant’s

broadcast to the public (and terrorists) at large.

While another comparator, A.R., made his disclosure on the Internet, his conduct was

dissimilar to Appellant because he posted only his speculation that FAMS coverage for a

particular flight route was to be cancelled. IAF-2, Tab 42 at Subtab F (Appellant’s Response to

Statement of Facts). Unlike Appellant who verified the nature of the information he received

prior to sharing it with a news reporter, A.R. did not know if the second or third-hand

information of what he posted was accurate, as his motivation to make such a posting was to

receive confirmation of the information contained therein. Id. at pp. 149-150, 158-159, 160-162,

180. Also, unlike Appellant, A.R. repeatedly expressed regret and recognized his grievous error

in judgment. Id. at pp. 150, 159, 161-162, 180. A.R.’s removal was proposed but mitigated to a

14-day suspension by another deciding official at another field office. Id. at pp. 176, 185. The

disciplinary decision letter noted how the deciding official placed a great of weight on A.R.’s

demonstrated sincere remorse (at p. 186)—a mitigating factor clearly absent in Appellant’s case.

Thus, A.R.’s lower level of discipline reflected how that deciding official believed A.R. had the

potential to be rehabilitated. In stark contrast here, Appellant testified, “It did not matter to me

whether it was confidential, law enforcement sensitive, SSI, or classified information.” Hearing

Ex. 8. Appellant’s defiance is unequivocal and shows, without question, how both the deciding

official and administrative judge appropriately determined Appellant to be a poor candidate for

rehabilitation.

Finally, the short delay in the disciplinary process did not undermine the fact that the

deciding official understandably lost trust in Appellant. See, e.g., Wilkes v. Veterans’ Admin., 6

M.S.P.R. 732 (1981) (removal sustained, even in light of good performance for four years after


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misconduct); also, e.g., Jiggetts v. Dep’t of Treasury, 48 M.S.P.R. 252, 256 (1991) (that the

agency permitted employee to remain in position for eight months while it investigated a theft

was not mitigating when removal was proposed within two months from the time the agency

concluded that the employee committed the theft). Therefore, the record evidence amply

supports the Administrative Judge’s finding that the deciding official properly considered the

relevant Douglas factors and that removal was within the realm of reasonableness.

F. Appellant failed to prove a prohibited personnel practice.

The record further shows that Appellant failed to provide any of his affirmative defenses.

1. The Agency’s interest in protecting SSI outweighs other interests.

The Administrative Judge properly determined that when balancing Appellant’s free

speech interest with the needs of the Agency, as a governmental employer, to attempt to perform

its important public function, the Agency must have “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 v. Dep’t of Transp., 106 M.S.P.R.

59, ¶ 46 (2007); also see Garcetti v. Ceballos, 547 U.S. 410, 420 (2006); Pickering v. Board of

Educ., 391 U.S. 563 (1968).

Assuming for the purposes of this discussion that Appellant’s disclosure was a matter of

public concern, the inquiry becomes whether the specific governmental interest in this case—

maintaining the confidentiality of the deployment of FAMs—was harmed. Undoubtedly so, as

soon as the Appellant made his disclosure to a journalist: “It created vulnerability as soon as he

made the disclosure. That would be the harm.” Tr. at 44. Appellant himself acknowledged this

undeniable harm and admitted at hearing that “disclosing SSI is—would endanger my life or

other people’s life.” Tr. at 108:8-10, 119:7-8.


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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 classified information would possibly

endanger the national security, even though the information had been previously in the public

domain).

Moreover, that the Agency used unencrypted work cell phones to disseminate SSI in this

instance never lessened the government’s interest or otherwise tipped the balance in Appellant’s

favor. Appellant’s testimony that the Agency’s transmission of SSI to FAMs on their

government-issued cellular phones somehow created a “public forum” is nothing more than

speculation and unsupported by the record of evidence. Tr. at 115:23-25. Rather, Appellant’s

choice to disclose SSI to a news reporter was the “bullhorn in a public plaza”—not the Agency’s

use of its cellular telephones to communicate quickly with its workforce. Tr. at 86; PFRF, Tab 3

at p. 31.


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In sum, when Appellant disclosed the substance of the text message to a news reporter,

he disclosed exactly which flights would be unprotected by the Federal Air Marshal Service. As

a result of Appellant’s misconduct, the Agency effectively lost its discretion to determine when

and where to deploy Federal Air Marshals, and the Agency necessarily needed to make

adjustments to its FAMS coverage. Tr. at 45; IAF-2, Tab 83 at pp. 26-27 (Initial Decision).

Applying the balancing test, the governmental interests in the protection of SSI and the efficient

deployment of FAMs overwhelmingly outweighs any free speech interest that Appellant may

enjoy.

2. Appellant did not prove retaliation for union activity.

Finally, the Administrative Judge correctly found that Appellant failed to prove his

affirmative defense that he suffered retaliation for engaging in protected union activity. As noted

in the October 8, 2009 Order, Appellant’s actions in support of the non-union Federal Law

Enforcement Officers Association (FLEOA) do not constitute protected activity (IAF-2, Tab 64

at p. 5 and fn.3 (Order, dated Oct. 8, 2009)), but even if they did, Appellant failed to establish a

genuine nexus between his activities in support of FLEOA and his removal. Although the

deciding official was aware of Appellant’s leadership position in FLEOA, Appellant failed to

establish by preponderant evidence that the Agency initiated its investigation into Appellant’s

misconduct or otherwise removed him on the basis of his FLEOA activities.

Rather, Appellant acknowledged and the Administrative Judge noted that Appellant’s

unauthorized media appearance on NBC Nightly News (Tom Brokaw) (Tr. at 93:20-23)

precipitated an investigation by the Agency, and that during that investigation, Appellant

volunteered that he made an earlier and separate disclosure of information to MSNBC (Brock

Meeks). IAF-1, Tab 4, Subtab 4J at p. 11; IAF-2, Tab 83 at p. 23. Appellant appeared on


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television in disguise; it was only by chance that a colleague recognized his voice and then, it

was only by luck that the Agency learned of Appellant’s separate disclosure to the news reporter,

which he made more than a year earlier. IAF-1, Tab 4, Subtab 4J at pp. 8, 11. No disciplinary

action was taken as a result of Appellant’s television appearance. IAF-1, Tab 4, Subtab 4A at

p. 2.

There is no evidence that this investigation was retaliatory. And, but for Appellant’s

verbosity during the investigative interview, the Agency would never have known that Appellant

made the SSI disclosure to a news reporter. The evidence of record supports a finding that

Appellant’s SSI disclosure was an intervening factor that broke any causal relationship, however

remote, between his FLEOA activities and the removal action. See, e.g., Dunning v. National

Aeronautics & Space Admin., 10 M.S.P.R. 183, 186 (1982) (where act of insubordination was

intervening factor between protected activity and agency’s action).

Appellant’s reliance on Russell v. Department of Justice, 76 M.S.P.R. 317, 325-325

(1997) and Johnson v. Department of Justice, 104 M.S.P.R. 624, 631 (2008) is misplaced.3

3 Appellant also inappropriately cites to Geyer v. Dep’t of Justice, 116 F.3d 1497 (Fed. Cir. 1997) (Table), an unpublished opinion and as such, without any precedential value. PFRF, Tab 3 at p. 56.

PFRF, Tab 3 at p. 55. Russell triggered the Board’s jurisdiction under Section 2302(b)(8) as a

whistleblowing claim (76 M.S.P.R. at 322), and as discussed earlier, the Board already

determined that the Whistleblower Protection Act does not apply in this instance. Likewise,

Johnson involved an individual right of action, which was before the Board’s jurisdiction only by

virtue of the WPA, deemed inapplicable here. 104 M.S.P.R. at 624. Appellant’s further reliance

upon the Agency’s alleged treatment of Frank Terreri also fails to support his argument. Terreri

served as the president of the Air Marshals Chapter for FLEOA; as noted above, he has never


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been charged with the unauthorized disclosure of SSI, and he remains employed with the

Agency. Tr. at 60:10-12.

Therefore, the evidence of record does not support a finding that the Agency removed

Appellant because of his FLEOA-related activities; rather the evidence supports a finding that

the gravity of Appellant’s misconduct far surpassed any possible motive to retaliate against him.

See generally, e.g., Haack v. U.S. Postal Serv., 68 M.S.P.R. 275, 282 (1995).

V. CONCLUSION

Appellant failed to provide a compelling reason to include additional evidence into this

already extensive record, which includes no less than a Ninth Circuit ruling and the Board’s prior

decision on interlocutory appeal. In carefully reviewing such an extensive record, the

Administrative Judge properly defined the Agency’s disciplinary charge and correctly

determined that the Agency established the requisite nexus and the reasonableness of its

disciplinary penalty by preponderant evidence. Finally, Appellant failed to carry his burden to

prove any of his affirmative defenses.

Accordingly, the Board should uphold the disciplinary penalty of removal for Appellant’s

intentional disclosure of security information to a news reporter, when such information was

meant only for those with a regulatory need to know.

Respectfully Submitted, /s/ Eileen Dizon Calaguas Eileen Dizon Calaguas Agency Representative


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MacLean v. DHS: MSPB Agency Response to MacLean Petition for Review - August 2, 2010

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