maclean v. dhs - mspb: maclean's petition for review before full washington dc u.s. merit...

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON, DC

)

ROBERT J. MACLEAN, ) DOCKET NUMBER

Appellant, ) SF-0752-06-0611-I-2

v. )

)

DEPARTMENT OF HOMELAND SECURITY, )

TRANSPORTATION SECURITY )

ADMINISTRATION )

Agency, )

) June 21, 2010

PETITION FOR REVIEW AND MOTION TO SUPPLEMENT RECORD

Appellant Robert J. MacLean files this petition for review of Administrative Judge

(“AJ”) Franklin Kang’s May 12, 2010 Initial Decision (“ID”), upholding his termination from

the United States Department of Homeland Security (“DHS”), Transportation Security

Administration, Federal Air Marshal Service (“TSA/FAMS”), where he had served as an agent

since he applied shortly after the September 11, 2001 terrorist attacks. Appellant adopts the

history of proceedings in Judge Kang’s Initial Decision. (ID, at 1-8)

The issues in this petition are significant for the Board to define basic premises both for

the merit system generally, and for the free speech rights of federal employees. The AJ upheld

termination despite conceding that Appellant’s only act of alleged misconduct, unauthorized

release of subsequently-determined Sensitive Security Information (“SSI”) to a reporter, was

undertaken in good faith, did not cause meaningful actual disruption of government operations,

and helped the Agency better serve the public.

P leading N umber : 2010012902 S ubmission date : 2010-06-21 21:39:40 C onfirmation N umber: 984973420 page 4 of 74

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That is an understatement. Appellant made a difference by exposing a secret plan to

abandon Air Marshal coverage on targeted aircraft during a July and August 2003 hijacker alert

more ambitious than 9/11. His disclosure led to congressional outrage, and TSA/FAMS

withdrawal of a text message to all air marshals that had canceled their missions, with the

explanation that it all had been a mistake. Appellant explained that he did not think he was

releasing SSI information, because contrary to Agency SSI rules TSA/FAMS had sent the

message out to all agents in an uncontrolled manner, devoid of normal security restrictions.

Nonetheless, at the time he had a legal right under the Whistleblower Protection Act

(“WPA”) to publicly disclose it. After the incident, Appellant waged an active public campaign

to better shield the secrecy of FAMS missions. He spoke out as a leader in the FAMS Federal

Law Enforcement Officers Association (“FLEOA”) chapter he just had organized. Ironically,

Appellant earned open Agency attacks for his and FLEOA’s public campaign against

management practices that institutionalized security breaches far more severe than the alleged

offense for which the Agency fired him.

On this record, termination seems implausible. The AJ, however, disregarded the totality

of the record. Instead, he made a sweeping rejection of Appellant’s credibility based on

extrapolation from an apparent inconsistency between hearing testimony and a government

prepared statement that he signed in 2006 that was immaterial and at worst cosmetic. By

contrast, the AJ made no credibility findings on management testimony or motives to retaliate.

Even more significant, with respect to penalty, the efficiency of the service, and Appellant’s

constitutional affirmative defense, the AJ exposed a far more significant premise for his ruling,

and its impact if upheld. In each context, he held that an Agency’s authority and self-interest,

right or wrong, prevails over the public interest. Appellant submits that premise cannot coexist


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with the Code of Ethics for Government Service, which the Board should restore as the

controlling balance for the merit system.

The Board also should restore the legitimacy of the WPA, whose enforceability over

Agency secrecy regulations was eliminated by an earlier decision in this case. Initially, while

rejecting Appellant’s affirmative defense for FLEOA retaliation, the AJ made the findings that

create both absolute First Amendment and WPA violations. Further, however, petitioner requests

that the Board exercise its inherent authority to restore enforceability for statutory free speech

rights over Agency restrictions. Until that occurs, agencies will be able to cancel the WPA at

will.

STATEMENT OF FACTS

Appellant began federal service on May 20, 1996 as a Border Patrol agent (MacLean

Deposition (“Dep”), at 20).1

After the September 11, 2001 tragedy he applied to the U.S. DHS

TSA/FAMS, “because I wanted to serve. I was definitely moved by what happened after the

attacks.” (Hearing transcript, at 69-70) (“Tr.”) He was in the first class of 35 Federal Air

Marshals (“FAMs”) to graduate after the terrorist suicide hijacking attacks on September 11,

2001. (Id., at 70)

Facts material for this petition began on July 26, 2003, when Appellant and all other

FAMs began receiving emergency notice of a terrorist suicide hijacking threat for the same long

distance aircraft used during the September 11, 2001 attacks, but with a broader and more

ambitious scope. The alert came from the Saudi Arabia government (Exhibit 21), Federal Bureau

of Investigation (“FBI”) (Exhibits 16 & 17), the State Department (Exhibit 17), and the

Department of Homeland Security (Exhibit 18). The July 26, 2003 DHS suicide hijacking

1 The record and citation format reflect the AJ’s October 27, 2009 Order.


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warning titled, “Potential AI-Qaeda Hijacking Plot in the U.S. and Abroad,” detailed a very

specific plan to attack United Kingdom and East Coast flights:

Attack venues may include the United Kingdom, Italy, Australia, or the East coast of the United States due to the relatively high concentration of government, military, and economic targets. . . . Al-Qaeda is looking for new ways to circumvent enhancements in aviation security screening and tightening immigration requirements,” in which “five-man teams” . . . “would attempt to seize control of a commercial aircraft either shortly after take off or shortly before landing at a chosen airport. This type of operation would preclude the need for flight-trained hijackers [for suicide missions]. The hijackers may attempt to use common items carried by travelers, such as cameras, modified as weapons.

(Exhibit 18, at 3)

The DHS Office of Intelligence & Analysis / Directorate for Preparedness / Homeland

Infrastructure / Threat & Risk Analysis Center issued a report on June 16, 2006 that confirmed

the foiled hijack plot associated with the July 26, 2003 warning. (Exhibit 26, at 5) ABC News

obtained an un-redacted copy of this report. (Exhibit 25):

Al Qaeda terrorists were planning to use cameras to disguise bombs and flash attachments as stun guns in a disrupted hijack plot that targeted the U.S. east coast, Britain, Italy and Australia, U.S. officials say.” The plot using cameras and flash attachments was foiled in the summer of 2003, according to the report.” The officials says al Qaeda’s ‘ingenuity was evident’ in its attempts to convert camera equipment and other non-threatening items into weapons that could be smuggled onto a plane. It warns such items could be used to bring down an aircraft or ‘to gain access to an airliner flight deck.’

A Central Intelligence Agency / Office of Inspector General report also confirms

the 2003 suicide airline hijacking plots (Exhibit VV; at 87-88):

Riduan “Hambali” Isomuddin provided information that led to the arrest of previously unknown members of an Al-Qaeda cell in Karachi. They were designated as pilots for an aircraft attack inside the United States, [to] hijack and fly an airplane into the tallest building in California in a west coast version of the World Trade Center attack . . .


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Federal homeland security offices went into an emergency mode. From July 26-

28, 2003 every FAM, including Appellant, was called in for an immediate, emergency

face-to-face briefing about special precautions and measures to thwart the imminent

attack. FAMs received all information in person and inside their respective field

offices, because telephone and email were not sufficiently secure. These mandatory

briefings were unprecedented, never occurring before or since. (Tr. at 80-82; Exhibit

37) A Las Vegas FAM who conducted these briefings sent a letter to his U.S. Senator,

Harry Reid of Nevada:

My knowledge of these incidents is first hand, as I was intimately involved in key aspects within the [TSA/FAMS Las Vegas field office] Operations Branch during late July 2003. I specifically remember these incidents since they were mandatory and individually given and never happened before or after. (Exhibit WWW)

A day or two after, however, Appellant and all FAMs in the nation received a

cellular phone text message to cancel hotel reservations associated with missions

requiring them to Remain Overnight (“RON”). The agents were instructed to make the

cancelations immediately, to avoid late cancellation fees. These flights were the same

long distance ones targeted in the DHS July 26, 2003 emergency suicide hijacking alert

its subsequent briefings, and involved the same type of aircraft hijacked on 9/11. (Tr.,

at 80, 83-7, MacLean Dep, at 89-94, 106) By contrast with strict security for the

terrorist briefings, the text message was sent without any warnings, restrictions or

markings that it contained classified or “Sensitive Security Information” (“SSI”).

Similarly, the message was distributed through unsecure Nokia (Mode # 3360) cellular

phones, rather than to wireless, encrypted, password-protected Palm Tungsten W

Personal Data Assistants (“PDA”) equipment that was required by security regulations

to protect the secrecy of sensitive information. (Id., at 74-5, 83, 88-89)


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Appellant immediately called other agents around the country, who confirmed

they had received the same message. Thinking the message must be a joke or a mistake,

he went to a supervisor who confirmed its accuracy, explaining that the Agency had run

short of funds and needed to reduce hotel costs. (MacLean depo., at 96) The supervisor

said the decision was “crazy” and “nuts,” but added that nothing could be done because

it came from “headquarters”. (MacLean depo., at 92; Tr., 88) When he spoke with the

supervisor, Appellant did not perceive the text message or their conversations to be SSI

or otherwise restricted information, because it was sent without markings in such an

uncontrolled manner, available even to former FAMs. The supervisor did not warn him

of any secrecy restrictions or SSI status for the contents of their conversation. (Id., id.

at 112-13, 124; MacLean Dep, at 95-6). From a security perspective, Appellant felt the

text message was transmitted “like somebody running into a plaza and taking a bullhorn

and blasting it out.” (Tr., at 89)

Appellant also made three calls to the DHS Office of Inspector General

(“DHS/OIG”), trying to report the order as a violation of law, finally reaching an agent

who also advised him that nothing could be done. (Tr., at 83-7, MacLean Dep, at 96-

98).

Appellant was deeply troubled about the consequences of abandoning defenses

against terrorists during an emergency alert, and was unwilling to give up so easily. He

felt it was necessary to warn the public and act to keep the plan from taking effect,

because he believed it to be dangerous and illegal.2

2 His belief was grounded in 49 USC § 44917, which provides: [D]eployment of Federal air marshals on every such flight determined by the Secretary to present


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As a result, he then anonymously contacted a responsible reporter who had

congressional connections, Mr. Brock Meeks of MSNBC. Appellant read the contents

of the text message to Mr. Meeks, who promised to get it to members of the Senate

immediately. (MacLean Dep, at 103-04) Appellant did not disclose any details

involving particular flights. (Tr., at 124-25) Appellant did not think he was violating

the law or, as discussed above, disclosing restricted SSI information. His perspective

was acting lawfully and following his duty to challenge what he believed was illegality

that endangered the public. (Id., at 86-90, 108-12, 122-23)

On July 29, 2003 Mr. Meeks filed a press report (Agency IAF-1; Exhibit 3 of

June 16, 2005 ICE/OPR Report of Investigation) entitled “Air marshals pulled from

‘key flights’”, and the next day the President was challenged on the issue in a press

briefing. (Exhibit 20, at 87-92). Appellant’s perspective was shared by former

“extreme[ly] concern[ed]” U.S. Senator Hillary Clinton of New York (Exhibit 23, at 3),

a “furious” U.S. Senator Frank Lautenberg of New Jersey (Exhibit J), U.S. Senator

Charles E. Schumer (Exhibit K, at 1; Ex. Q), U.S. Senator John Kerry (Exhibit M, at 1),

U.S. Congresswoman Carolyn Maloney of New York (Exhibit L), and U.S.

Congressman Hal Rogers of Kentucky (Exhibit M, at 2). All expressed outrage and

urged the Agency to reverse its “shocking,” “incredible,” “foolish,” “boneheaded,”

“nonsensical,” “sorry episode” of a operational plan to remove FAMs from nonstop,

high security risks . . . [and on] nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority.”


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long distance flights. (Exhibit I)

At a press conference, Senate leaders threatened hearings. U.S. Senator Boxer

when so far as thanking the sources of the July 29, 2003 Meeks article:

I want to thank the air marshals who came forward and told the truth about what was going on within their Agency and bringing this issue into the spotlight,’ said Sen. Barbara Boxer, D-Calif., during a news conference, ‘because I believe that cutting air marshals was clearly in the mix of budgetary cuts being considered. (emphasis added) (EXHIBIT Q, Par. 10)

Within 24 hours, DHS Spokesman, Robert Johnson, issued a statement that the Agency’s

canceled plan “was premature and a mistake” (Exhibit NN) DHS Under Secretary for Border and

Transportation Security, Asa Hutchinson, told the media, “There has been a budget shortfall in

TSA[.]” (Exhibit 34) He informed U.S. Senator Schumer that the plan “was a mistake,” but DHS

spokeswoman Rachel Sunbarger denied that cuts were in the works, saying, “No decision was

ever made to cut the Federal Air Marshal Service or to reduce the number of missions.” U.S.

Senator Boxer responded, “We caught them, and they backtracked[.]” (Exhibit 32)

In short, at whatever stage the plan to remove TSA/FAMS coverage of nonstop, long

distance flights was canceled before going into effect. The hijacking attempt was foiled. (Tr., at

87-92)

The DHS/OIG documented in a November 2004 report titled “Review Of Alleged Actions By

Transportation Security Administration To Discipline Federal Air Marshals For Talking To The

Press, Congress, Or The Public,” that the Agency’s cancelation of the plan to remove FAMs

from nonstop, long distance flights for two months went into effect on August 2, five days after

the Appellant’s disclosure. It also confirmed the original plan would have endangered the same

aircraft used for the terrorist attacks on September 11, 2001, so any flight four hours or longer

from Las Vegas McCarran International Airport, and flights three hours or longer out of Salt


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Lake City International and Phoenix Sky Harbor International Airports would have been

unprotected from August 2, 3003 until “the remainder of the fiscal year (September 30, 2003),” a

period of two months. The plan’s end date is confirmed by the U.S. Government Accountability

Office (“GAO”) March 31, 2004 report:

The FAMS officials said that these program reductions would have continued for the remainder of the fiscal year, but the restoration of the $8.7 million in late July 2003 permitted them to restore the level of overnight stays, longer duration flights, and advanced training programs. (Exhibit 33, at 7-8) The FAMS Director began to reduce scheduled air marshal coverage on cross-country and international flights at the end of July 2003, to be effective August 3, 2003. (Exhibit 31, at 4) The incident left a deep impression on Appellant, who weeks later co-founded a FLEOA

TSA/FAMS chapter with Los Angeles FAM Frank Terreri to challenge mismanagement of its

airline security mission, including regular headquarters-directed security breaches that repeatedly

exposed the identity of undercover air marshals. (Tr. 92-95) (See Agency IAF-1; Exhibit 5 of

June 16, 2005 ICE/OPR Report of Investigation); Exhibits 2, at 22; 5, at1; 7, PP, XX, FFF, III.)

When management ignored or rejected their concerns, FLEOA actively and

publicly protested these security breaches through disclosures to Congress and the

media. Their concerns repeatedly were aired in numerous media outlets, including the

NBC Nightly News program for which Appellant was placed under investigation. They

further sparked an ABC News May 17, 2006 network national television show, and led

to a May 25, 2006 House Judiciary Committee report that harshly attacked TSA/FAMS

mismanagement. On August 10, 2006, the U.S. Office of Special Counsel (File number

DI-06-1620) ordered an investigation into the issues, and numerous changes occurred in


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management practices to correct the problems. (Tr. 95-7)(See also Exhibits 29, Z, JJJ

and KKK)

FLEOA’s efforts led to intense conflict with Agency management. Agency headquarters

displayed unrestrained hostility toward the TSA/FAMS FLEOA chapter and leadership, to the

extent of chain investigations, involuntary administrative leave and public humiliation of

TSA/FAMS Chapter President Frank Terreri. Instead of ordering Mr. Terreri to surrender his

service weapon, badge, and credentials at a secure, discreet law enforcement facility, the

Appellant’s deciding official, Frank Donzanti, ordered two supervisors to his front yard,

humiliating him in front of family and neighbors before placing him on administrative leave.3

This occurred within days of the FLEOA Executive Board issuing an unprecedented vote of no

confidence in current FAMS Director Thomas D. Quinn. (Exhibit 29)

The animus originated with FAMS Director Thomas D. Quinn. On August 11, 2004, Mr.

Quinn sent the DHS Office Inspector General a 197-page complaint requesting a criminal

investigation of the Appellant and other FLEOA TSA/FAMS chapter executive officers. (Exhibit

Y). Mr. Quinn’s request was rejected. On February 11, 2005, he subsequently sent another

request for investigation to the DHS Immigration & Customs Enforcement (“ICE”) Assistant

Secretary Michael J. Garcia. In his cover memorandum to Mr. Garcia, he wrote that the FLEOA

TSA/FAMS Agency Executive Board Officers were “disgruntled,” “malicious,” “obscene,”

“irresponsible,” “abusive,” and part of a “de facto labor organization.” Mr. Quinn accused the

3

As indicated in the U.S. House of Representatives House Judiciary Chairman F. James Sensenbrenner’s May 25, 2006 report titled,

“In Plane [sic] Sight: Lack Of Anonymity At The Federal Air Marshal Service Compromises Aviation And National Security,” after

the Immigration & Customs Enforcement / Office of Professional Responsibility (ICE/OPR) investigated and cleared Mr. Terreri of

multiple allegations -- including the unauthorized “release of sensitive, secure, or classified information,” it took six weeks for Mr.

Donzanti to inform Frank Terreri and place him back on flying active duty. (Exhibit Z; at 22)


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FLEOA FAMS Agency Executive Board Officers of being “disgruntled amateurs,” “insurgents,”

“terrorists” in a February 9, 2007 Wall Street Journal (Exhibit JJ, at 4, Par. 4-5)

The overall pattern of sustained retaliation through seeking investigations of misconduct was

extraordinary. Former Director for the Joint Intake Center ICE/OPR in Washington DC & U.S.

Treasury Assistant Inspector General, Matthew L. Issman wrote to Congress on May 12, 2009:

At the time, FAMS was under the purview of ICE, and I was [] the [Director of Joint Intake Center in Washington DC for the] ICE/OPR. I was incredulous at the steady stream of allegations from Director Quinn and his Assistant Director Kent Jeffries, requesting investigations of FAM Terreri and other vocal FAM FLEOA Agency Chapter Vice Presidents for frivolous charges. (Exh. 5)

As the FLEOA TSA/FAMS Executive Vice President, Appellant was one of the

Agency’s most active public critics, repeatedly blowing the whistle on alleged misconduct by

Mr. Quinn and headquarters staff. He made disclosures to, inter alia, Agency management, the

Office of Inspector General, Immigrations and Customs Enforcement / Office of Professional

Responsibility (“ICE/OPR”) investigators, congressional offices and committees, and national

electronic and print reporters including Mr. Meeks. (MacLean Dep, at 115-135; IAF-1, Tab 4,

Subtab 4J ICE affidavit, at 2-3)(“ICE aff”)

Appellant believed that Agency mismanagement was risking a catastrophic commercial

aviation failure by violating the law, gross waste of funds, abuse of authority and overall gross

mismanagement that endangered public health and safety. His specific concerns involved sloppy

practices that could lead to exposure of individual undercover agents, permitting terrorists to

know their identities. This would drastically reduce their effectiveness and undermine their

ability to stop the next September 11, 2001 type of terrorist attack. Examples included --

checkpoint bypassing procedures and aircraft pre-boarding procedures that forced agents to show

their security credentials in front of other passenger; mandatory hotel policy that again forced


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uncontrolled disclosure of their identities and permitted hotels to advertise that undercover

agents were staying there; dress and grooming codes that made it functionally impossible not to

stand out from civilian passengers; and repeatedly divulging SSI to the media. (MacLean Dep, at

115-135; ICE aff, at 2-3)

Appellant’s concerns were well-taken. As Mr. Issman explained,

As a federal law enforcement officer myself who traveled armed frequently in and out of Washington DC area airports, I observed first hand FAMs on my flights trying to carry out their missions under ridiculous and onerous circumstances. It was not just the fact that they were required to wear suits and ties and maintain military-style grooming, but the plainly obvious way they were being escorted by uniformed officers up exit lanes to bypass airport security checkpoints and then get pre-boarded in plain view of the general passengers. Any individual who cared to observe this folly could pick out and identify the FAMs for any given flight or airport by simply watching the gate and exit areas. (Exh, 5)

Mr. Quinn’s views on the FLEOA TSA/FAMS chapter specifically included

Appellant, who was an executive board member. He was placed under close scrutiny. The

headquarters Policy Compliance Unit (“PCU”), which handled Internal Affairs for Mr.

Quinn and was staffed by his long times associates from the Secret Service, even went so

far as to obtain the military records of his father. (Quinn Dep, at 55-58, Exhibit 4)

Appellant’s intensifying FLEOA advocacy directly caused two requests that led to the

investigation on which his termination was based for unauthorized SSI release. It was not

caused by the July 2003 Meeks disclosure.

The first catalyst was Appellant’s September 9, 2004 camouflaged appearance on

NBC Nightly News. (Exhibit TT) In connection with the segment on television, he spent

over an hour being filmed. In the interview, he continued blowing the whistle on repetitive

headquarters management security breaches of SSI that canceled the ability of FAMs to


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work undercover. The Agency has not charged that Appellant disclosed any SSI

information himself during the interview. Although disguised, Appellant’s voice was

recognizable during the interview. (Tr., at 93-95, MacLean Dep, at 130) Five days later, on

September 14, 2004, Las Vegas Assistant Special Agent in Charge Gregory Korniloff filed

a formal request for the DHS Immigration and Customs Enforcement (“ICE”) Office of

Professional Responsibility (“OPR”) to investigate:

Las Vegas Field Office (LASFO) based personnel believe Federal Air Marshal (FAM) Robert J. MacLean to be the hooded FAM “Mike” who appeared on NBC Nightly News on 9/9/04. The FAM complained of FAMS policies, implying that terrorists can easily identify and cut FAM’s throats if dress code policies were not changed. If substantiated, his appearance would be in violation of internal directives.

(Agency IAF-1; Exhibit 1 of June 16, 2005 ICE/OPR Report of Investigation)

ICE/OPR did not treat the allegations with the priority or urgency of alleged misconduct

that could undermine homeland security. In fact, investigators did not contact Appellant until

after a second, February 11, 2005 request for investigation, this time from Director Quinn

personally. It was the context for his expressions of vitriolic animus discussed earlier. Mr. Quinn

explicitly grounded the request for investigation in his feud with FLEOA and specifically in

Appellant’s leadership role:

[MacLean] is active in FLEOA and serves as Executive Vice President of the FLEOA FAM Executive Board. He is currently under investigation in connection with his unauthorized appearance on a segment of NBC Nightly News where he criticized [TSA/]FAMS policies. (EXHIBIT 4, Quinn/Garcia memorandum at 2) . . . MacLean is also Executive VP of [TSA/]FAM[S] FLEOA and the subject of a pending ICE OPR investigation for having appeared on NBC Nightly News wearing a hood to mask his identity. MacLean is a former USBP from the San Diego Sector which is the home of local 1619. [This is (t)]he same union local that FAM Frank Terreri was formerly president of. (EXHIBIT 4)


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On May 4, 2005, the ICE/OPR investigators interviewed Appellant regarding only

on two allegations related to NBC Nightly News. :

On September 17, 2004, the U.S. Immigration and Customs Enforcement (ICE), Office of Professional Responsibility (OPR), Joint Intake Center (JIC), Washington, DC, received a Conduct Incident Report (CIR) from the DHS ICE Federal Air Marshal Service (FAMS). The report alleges that Federal Air Marshal (FAM) Robert J. MACLEAN, Los Angeles, California, made an unauthorized media appearance on the NBC Nightly News television program (Exhibit 1). An additional allegation of unauthorized release of information to the media was also uncovered during the course of the investigation. ALLEGATION ONE : Unauthorized Media Appearance. SUBSTANTIATED ALLEGATION TWO: Unauthorized Release of Information to the Media. SUBSTANTIATED (IAF-1, ICE/OPR Report of Investigation, at 1)

Appellant signed a corresponding affidavit. (IAF-1, Tab 4, Subtab 4J) The statement

came primarily from documents that Appellant provided and the investigators summarized.

Under the Freedom of Information Act (“FOIA”), Appellant also obtained a transcript of

his oral responses to questions. He moves to reopen and supplement the record with this

transcript, which is attached.4 In the affidavit, Appellant openly agreed he had been on the

television program, and explained his reasons as follows:

[TSA/]FAMS management ignored mine [sic] and other FAMS’ concerns regarding [TSA/]FAMS’ checkpoint bypass procedures, aircraft boarding procedures, dress / grooming codes, mandatory hotel policy and [TSA/]FAMS management’s constant desire to divulge Sensitive Security Information to news organizations such as CNN and NBC Nightly News. I reported these problems to the Oakland DHS/OIG office, but no Agents followed up on my complaint.

4 Appellant submits there is good cause, because it is highly probative to the AJ’s central credibility conclusion –-

the information Appellant gave to ICE OPR contradicted his testimony at hearing. As discussed below, in fact Appellant provided the investigators with consistent information, which their summary summarized in a potentially

misleading manner. Since the distinction was immaterial to Appellant’s defense, and the AJ neither probed at

hearing nor gave an indication he considered the alleged inconsistency to be significant, Appellant submits there is

good cause to supplement the record. See Coleman v. Dep't of the Treasury, 88 M.S.P.R. 266, 268 (M.S.P.B. 2001),

and Fleming v. Dep't of Labor, 97 M.S.P.R. 341, 344 (M.S.P.B. 2004)


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(IAF-1, ICE/OPR exhibit # 2, at 1-2).

Appellant also volunteered information not previously known by the investigators, after

they asked if there was anything else. He then submitted the full history of his disclosures,

including that to Mr. Meeks on July 28, 2003. Although there was only cursory discussion of the

other whistleblowing, he provided the investigators with all the corresponding articles arising

from his disclosures. That included Meeks’ July 29, 2003 article identifying a text message to all

FAMs nationally cutting off RON missions throughout the country. (IAF-1, ICE/OPR exhibit 3)

The ICE/OPR-drafted affidavit presented all of Appellant’s concerns from his vantage

point in the Las Vegas office, a detail Appellant did not find meaningful at the time. The

statement also quoted Appellant as holding Mr. Quinn and his headquarters staff responsible for

security breaches including repeated release of SSI, which he alleged “threaten national

security,” Appellant makes no mention of any Las Vegas officials. (ICE aff, at 2) The statement

noted that Appellant had no remorse or regrets for his public disclosures, including those to Mr.

Meeks. He explained that relevant government authorities “all ignored my complaints and would

not follow them up with investigation, . . . [and] reporting these gross mismanagement issues has

resulted in immediate and positive change in deadly [TSA/]FAMS policies.” (Id., at 2-3).

Appellant was very clear, however, that his perspective reflected his belief that he

had stopped illegality, rather than engaged in it. He stated that, to his knowledge and

belief, he had not disclosed any SSI or classified information.

During the interview FAM MACLEAN admitted to appearing on the NBC Nightly News television broadcast on September 9, 2004, as the subject shown wearing a hood and identified only as FAM “Mike.” FAM MACLEAN admitted that he did not obtain authorization from [TSA/]FAM[S] management prior to making the aforementioned media appearance. FAM MACLEAN denied knowingly releasing, in any form, sensitive, secure, or classified information to any unauthorized parsons groups, or associations. Following the interview, FAM MACLEAN provided


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[ICE/]OPR/Chicago with an affidavit dated May 4, 2005 (Exhibit 2). (IAF-1, ICE/OPR Report of Investigation, at 2)

He explained to the ICE OPR investigators that Agency policy requires SSI to be marked,

and communicated in a secure manner. (Id., at 2). All testimony and documentary exhibits for

this proceeding, without exception, reflect Appellant’s perspective was that he had neither

disclosed any SSI information nor broken the law. The AJ cites no inconsistency on this premise,

nor does the Agency offer any contrary intent testimony except that he should have known. .

On June 16, 2005, ICE/OPR turned in its Report of Investigation (“ROI”) associated with

its May 4, 2005 interview of the Appellant. There was no sense of urgency to act on its findings,

and Appellant continued to work uninterrupted and without restriction during the interim. In fact,

he was kept on flying active duty between May 4, 2005 -- the day he admitted to ICE/OPR that

he was a source of the July 29, 2003 MSNBC article, and September 13, 2005 when the Agency

proposed his removal, a period longer than four months.

The grounds for removal were that Appellant – (1) appeared on NBC Nightly News

without advance permission; (2) made other unauthorized media communications; and (3)

revealed SSI to Mr. Meeks in his July 29, 2003 disclosure. (IAF-1, Tab 4, Subtab 4G)

Appellant was then removed from full active duty:

Although Appellant had his weapon, badge, and credentials revoked and was placed on

administrative leave that day, for another five months there was no action to restrict him from the

Agency’s secure Internet portal, ( www.secureskies.net ). That gave him unfettered access to all

of his Los Angeles field office squad’s flying FAMs’ SSI-marked mission schedules. (Exhibit

AA) There were approximately 30 FAMs on the Appellant’s squad. Some of Appellant’s fellow

squad members’ schedules indicated exact seating assignments. FAMs’ seating assignments are

classified as SECRET by the Agency. (Exhibit Z; at 45)


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There was never any action to suspend or remove Appellant’s security clearance. Mr.

Donzanti said administrative leave would have taken too long to establish, but when pressed, he

conceded the restriction and removal could be completed in days to a month, and was carried out

in less than a week with another Los Angeles FAM and the FLEOA TSA/FAMS Agency

Chapter President, Frank Terreri. (Tr. 38-40, 53, 57-59)

On April 10, 2006, Mr. Donzanti sustained the removal, based solely on the third charge.

(IAF-1, Tab 4, Subtab 4A) He made that decision on the notoriety of and Appellant’s lack of

remorse over the single incident, which he testified meant there was no rehabilitation potential

and outweighed a spotless, “exemplary” record over the previous 2.5 years and no other

instances of improper SSI or other disclosures. He also made it without consulting prior relevant

Agency experts on whether the information Appellant disclosed constituted SSI, or with

supervisors to check for a pattern of unauthorized disclosures. Donzanti said Appellant did “his

job, and he didn’t cause any problems for [his] office” . . . he was “doing the good work that he

had been doing [.] . . . “He didn’t cause trouble for me.” (Donzanti Dep, at 26-27) Appellant had

received satisfactory marks on his performance appraisal for security-related issues throughout

Donzanti’s supervision, including the May-September period.

On August 31, 2006, nearly four months after terminating Appellant, the Agency’s SSI

Office Director issued a final order that the information for which Appellant was fired in fact

constituted SSI:

[I]t is my determination that, on July 29, 2003, the information in question

constituted SSI under SSI regulations then in effect, 49 CFR 1520.7(j),[] as the

information concerned specific FAM Deployments or missions on long-distance

flights.

IAF-1, Tab 22, Attachment


18

ARGUMENT

I. THE ADMINISTRATIVE JUDGE DID NOT RESOLVE THE REMAINING LEGAL

ISSUE PRESENTED BY THE NINTH CIRCUIT COURT OF APPEALS.

In MacLean v. Department of Homeland Security, 545 F. 3d 1145, 1152 (Ninth Cir.

2008) the Court held that the information disclosed by Appellant in fact was SSI, but added he

could “contest his termination” at the Board by raising “the lack of clarity of [the Agency’s]

2003 ‘sensitive security information’ regulations” as proof he made the disclosure with a “good

faith belief the information did not qualify as sensitive security information.”

By contrast, the Agency terminated Appellant under a strict liability standard that did not

require intent. In his Initial Decision, the AJ reaffirmed that intent is only relevant for penalty

considerations, not the charge at issue. (ID, at 9) Although he rejected Appellant’s credibility on

the question of intent and applied the factor extensively in assessing the proper penalty, his

findings of facts for the termination are limited to – 1) Appellant disclosed the context of the text

message to Mr. Meeks; 2) the information was SSI; 3) Mr. Meeks was not an authorized

recipient for SSI. The AJs only specific conclusion of law on liability is that Appellant engaged

in the unauthorized disclosure of SSI, the Agency’s charge. (ID, at 18-19). These issues all were

previously resolved by the Ninth Circuit decision, which isolated the “good faith” issue for

further resolution. Ironically, the ID is written and structured to avoid the issue. A word search of

the Initial Decision fails to uncover the phrase “good faith” in any analysis beyond background.

(Id, at 8)

The Ninth Circuit decision is a mandate for clear resolution of this dispute, which the AJ

has not considered. If Appellant had a good faith belief that he was not disclosing restricted SSI


19

information, the Board should reverse the termination rather than merely factor the issue into

penalty criteria.

II. THE ADMINISTRATIVE JUDGE’S CREDIBILITY DETERMINATION IS

DEFICIENT AS A MATTER OF LAW

While the AJ’s overall credibility assessment specifically does not reference intent, (Id.,

at 18), he rejects Appellant’s testimony generally as “evasive, nuanced, and inconsistent.” (Id., at

17) The AJ based this negative assessment solely on one reason relevant if immaterial to the

Ninth Circuit decision: Appellant allegedly told the ICE/OPR investigators that the text message

went to Las Vegas FAMs, not those around the nation as in his testimony (Id., at 17-18), and in

every other instance in the record. Although not explained, presumably this distinction would

make any public knowledge of unprotected flights more specific.5

While credibility determinations are entitled to deference, it is based on upholding

significant responsibilities to the record. In Hillen v. Department of the Army, 35 MSPR 453, 458

(1987), the Board listed those responsibilities: First the factual issues in disputes must be

identified. Second, all relevant, material evidence must be summarized. Third, select which side

is more credible, with a detailed explanation for the choice. Cross v. Department of the Army, 89

MSPR 62, 71-2 (2001) established that if an AJ fails to explain the reasons for a credibility

determination, the Board is free to substitute its own based on the record.

5 While three other reasons were presented, even if well-taken none are relevant for the credibility issue before the

Board – whether Appellant made a good faith mistake on the information’s status. 1) The AJ held that by disclosing

cancellation of all RON coverage for a ten day period, Appellant inherently was disclosing the absence of coverage

for particular flights. (ID, at 17, 32) The Ninth Circuit already made this finding, however, MacLean, 543 F. 3d at

1152, which is not before the Board. Repeating that conclusion begs the question referred by the Court – whether

circumstances such as lack of marking meant there was a goods faith mistake. (Id.) 2) The AJ emphasized that

Appellant showed no remorse for his actions. (Id., at 18, 31) The AJ does not explain why Appellant could not both

think he was able to and in fact acting lawfully, but be willing to act unlawfully under other circumstances. The AJ’s erroneous treatment of Appellant’s alleged lack of remorse will be addressed in an analysis of the Douglas penalty

factors. 3) The AJ assessed from Appellant’s demeanor at hearing that he made a public disclosure out of frustration

with Agency management, rather than due to a belief that the text message was not SSI. (Id., at 18) Again, however,

the AJ offers no basis why the issue is relevant for credibility about a mistake, or even why the two perspectives are

mutually exclusive. Throughout the hearing, Appellant testified openly to each.


20

In Special Counsel v. Lee, 2010 MSPB 89, the Board affirmed this doctrine, instructing

that credibility determinations can be overturned when they are incomplete, inconsistent with the

weight of the evidence, and do not reflect the record as a whole. When that occurs, the Board can

substitute its own determinative credibility fact finding, even on issues such as demeanor. The

Board may resolve issues such as intent based on review of the record as a whole, under the

preponderance of evidence standard.

An AJ may reject a party’s entire credibility based on a single relevant incident, as here.

The decision cannot be upheld, however, if that determination is not well-taken and no other

relevant credibility factors are assessed. Harkins v. Smithsonian Institution, 73 MSPR 397, 405

(1997)

As discussed below, Appellant submits that the AJ cited the Hillen standard, but failed to

apply it. The AJ based a sweeping credibility determination on an immaterial distinction that he

accepted as valid in another context, and without considering a myriad of conflicting evidence.

By contrast, the AJ failed to analyze the markings issue specified by the Ninth Circuit, along

with every other objective and subjective credibility factor in the record. The Board is free to

substitute its own judgment.

1. The AJ did not support his demeanor-based credibility findings with citations to the record:

The AJ did not and could not consistently with the record find that the Appellant’s

testimony was untruthful, deceptive or misrepresented. Instead, the AJ stated that “[i]n observing

the Appellant’s testimony at the hearing, I found the Appellant to be evasive, nuanced, and

inconsistent.” (ID at 17). These are the only “demeanor-based” credibility characterizations in

the ID. The AJ does not cite any transcript testimony that the Board can review where the AJ

viewed the Appellant to be “evasive” or otherwise not directly answering any question asked of

him. Nor does the AJ cite to any transcript testimony where the Appellant was viewed as


21

“nuanced”, or even explain how that term is being used in a credibility context.6 Judges and trial

lawyers are commonly expected to point a fact finder or appellate body to the transcript passages

where a witness is avoiding or dodging questions. Indeed these are often flash points in a trial

where the witness is admonished to answer questions directly, or where the judge takes a hand in

clarifying questioning. But the AJ here gives no such record citations.

2. The AJ broadly mischaracterizes divergent views as credibility issues. As to the AJ’s observation that the Appellant’s testimony was “inconsistent”, the AJ does

give specific reasons and record citations where he viewed the Appellant’s hearing testimony to

conflict with documents in the record. The AJ does not cite internal inconsistencies,

contradictions or changing versions during the Appellant’s testimony. Such internal

inconsistencies could be “demeanor-based” credibility observations. However, the AJ’s cited

inconsistencies between testimony and documents are conclusions from the content record,7 not

from the demeanor, conduct or behavior of the witness. Additionally, the AJ appears to use very

broad characterizations for his credibility determinations. Thus, if he was not “persuaded” by a

contention made by Appellant’s testimony, the AJ might couch this as an “observed” credibility

finding, as follows: “In observing the Appellant at hearing, I found that the Appellant’s attempts

to distinguish, explain, and qualify his prior written statements under oath, as well as his Dep

testimony, were not persuasive.” (ID at 18).8

3. Only properly supported “demeanor-based” credibility determinations warrant

Board Deference:

Only properly support “demeanor-based” credibility determinations by an AJ are entitled

to deference by the Board. Even where an AJ makes express demeanor-based credibility

6 In context, the AJ apparently meant the term nuance as a pejorative. It’s common meaning according to the Merriam-Webster Dictionary is “a subtle distinction or variation”; “a subtle quality” or “nicety”; or “sensibility to, awareness of, or ability to express delicate shadings”. 7 See ID, at 17-18 as to comparing Appellant’s testimony with prior written statements to ICE OPR. 8 See also the AJ’s reference to non-persuasion as a credibility issue at ID, p. 33. Indeed, the AJ appears to discount

the possibility of the Appellant and the Agency having any good faith differences of implications or views even as to

the undisputed facts that the Agency sent unmarked sensitive information on insecure cell phones rather than on the

secure PDA’s. Despite the logic of Appellant’s views on these facts, the AJ was wont to brand his preferences for

the Agency’s views as “credibility” shortcomings of the Appellant. (See especially ID, pp. 32-33).


22

findings, if these are not sufficiently explained and supported with record citations, then the

Board is free, perhaps required, to disregard them. All other credibility determinations by the AJ

are subject to the Board’s de novo review authority, since these can be made based on the

transcript and the written record.

The only advantage an “impartial, experienced administrative judge who has observed

the witnesses” has over the Board in deciding a case fairly is his or her opportunity to observe a

witness testify. Haebe v. DOJ, 288 F.3d 1288, 1299-1300 (Fed Cir 2002). Where credibility

determinations are not based on demeanor, the AJ has no such advantage. As the Haebe court

stated, “our cases have only required deference when an administrative judge was able to

observe the demeanor of a testifying witness and, as a result, the administrative judge's findings

were explicitly or implicitly based on the demeanor of a witness.” Id. at 1300-01. The court

explained the prevailing “confusion as to the deference requirement [as] perhaps a result of

haphazard use in the case law of the terms ‘deference’ and ‘special deference’ and variations of

those terms in relation to the concepts of credibility and demeanor.” Id. Thus, “[w]hen the

demeanor-based deference requirement is not in play, the MSPB is free to re-weigh the evidence

and substitute its own decision as to the facts or the law “. Id., at 1301-02.

4. The Federal Circuit defers to the Board’s rejection of AJ credibility

determinations that are not “sufficiently sound”: The Board’s rejection of an AJ’s demeanor based credibility findings will be upheld

where the AJ has failed to sufficiently support them in accordance with the Board’s rules. As the

Haebe court explained at 1301-02:

The consequence of the deference requirement is that if the MSPB's reasons for overturning demeanor-based credibility determinations are not sufficiently sound, its decision does not survive substantial evidence review. Chauvin, 38 F.3d at

566 ("The board majority did not articulate a sufficient reason for its disbelief of Chauvin's testimony."). In light of the "sufficiently sound" requirement for


23

overturning AJ credibility determinations, the MSPB has established procedural directives for administrative judges under its decisions in Hillen 30 and Spithaler 31 in order to promote the establishment of a full record for the MSPB's review. *** These include: (1) the witness's opportunity and capacity to observe the event or act in question; (2) the witness's character; (3) any prior inconsistent statement by the witness; (4) a witness's bias, or lack of bias; (5) the contradiction of the witness's version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness's version of events; and (7) the witness's demeanor.

See also, Jackson v. Veterans Admin., 768 F.2d 1325, 1329-31 (Fed. Cir. 1985), and Wright v.

United States Postal Serv., 183 F.3d 1328, 1334 (Fed. Cir. 1999). These credibility precedents

of the Federal Circuit are consistent with prevailing rules as to weighing the value of demeanor

based credibility determinations. See, Suntharalinkam v. Gonzales, 458 F.3d 1034, 1040-45 (9th

Cir 2006), Zhi Wei Pang v. Bureau of Citizenship & Immigration Servs., 448 F.3d 102 , 107 (2nd

Cir 2006); and Anderson v. Bessemer City, 470 U.S. 564, 575 (1985), and United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948).

As seen below, the AJ’s determination does not conform with these requirements.

B. The totality of the record demonstrates that Appellant’s ICE/OPR affidavit does

not undermine his credibility. Appellant does not contest signing a May 4, 2005 affidavit that included the following:

I informed Brock Meeks that all 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. My supervisor told me that the Service ran out of funds for overtime, per diem, mileage and lodging. (ICE aff, at 2)

This contains an alleged discrepancy which the AJ concluded “belies” all Appellant’s

other testimony: he told Meeks RON missions were being canceled nationally. (Id., at 17) It

was not an issue that the AJ probed or questioned further at hearing. Closer review indicates his

judgment on this point cannot withstand a review of the record.


24

Initially, it is undisputed that the ICE/OPR affidavit is the only instance where Appellant

specifically identified the Las Vegas region. Every other communication in the record has him

referring to a national text message. If there were a credibility issue, it would be directed at

Appellant’s ICE/OPR statement, not the rest of his testimony.

There is not a basis to reject Appellant’s credibility before ICE/OPR. Initially, Appellant

did not tell ICE/OPR that the message was limited to Las Vegas FAMs. The FOIA audio

transcript of the interview verifies that he did not discuss whether all FAMs or Las Vegas FAMs

received the mission cancelation text message. He introduced the issue in general terms, and

gave investigators the July 29, 2003 Meeks article that described a national cancelation of

coverage, not limited to the Las Vegas region. (IAF-1, ICE/OPR Exhibit 3) The investigator

summarized the article to include in the signed statement. While spotlighting Las Vegas, the

statement does not say that was the only region to receive the message, and the investigator may

have used that terminology to reflect personal knowledge. The AJ did not check these factors

with Appellant at hearing, before using the distinction for a sweeping adverse judgment.

Appellant was surprised when the distinction arose at hearing, because it is so

inconsistent with his viewpoint and all testimony. (Tr., at 125-26) He suggests that the

discrepancy must be a good faith oversight, because the text did not specifically limit the

message’s scope to Las Vegas, and he did not consider the distinction significant. There were

other mistakes in the statement, such as substituting “2004” as the date of disclosures to Mr.

Meeks during 2003, and referencing a 2004 MSNBC story as occurring in 2003. (ICE Affidavit,

at 2-3)

To Appellant, the distinction was not significant. As discussed below, what mattered to

inherently constitute SSI was whether the information involved a specific flight that could


25

expose an undercover agent. The Las Vegas region covers international and airlines hub airports

at Las Vegas, Phoenix and Salt Lake City , (Exhibit LL, at 5), with a volume in the hundreds to

thousands daily. To Appellant, the difference between regional and national volumes was

immaterial. Both were a different category than specific flights.

The AJ himself made the same distinction with respect to whether the TSA/FAMS

cancellation was a matter of public concern that triggers First Amendment free speech rights.

[T]he Agency argues that the Appellant’s disclosure of SSI does not meet the first prong of the test above because the exact nature of any particular Deployment or mission is not a matter of public concern. While this argument may apply to a specific mission, the communication at issue involved the cancellation of all RON missions out of Las Vegas

within the context of a flying public that feared another terrorist attack involving commercial aircraft. (ID, at 24)(record citations omitted) (emphasis supplied)

Ironically, the AJ rejected Appellant’s entire credibility on the same particular-general

distinction that he relied on for constitutional rights.

Appellant had no motives to misinform ICE/OPR about the scope of text message

distribution, and it would have been out of character in unusually open interview testimony. He

volunteered it to first the Meeks and all other public disclosures to the investigators, when they

had come only to investigate the September 9, 2004 NBC Nightly News with Tom Brokaw

network television show. (Exhibit TT) Although he waited for them to ask, he brought with him

to the interview all the associated public news reports from his disclosures.

Further, consciously presenting an account of limited distribution for the text message

would have contradicted the knowledge Appellant went to considerable trouble to confirm. He

first had called other agents around the country, who confirmed they had received the same

message. (Tr., at 83, lines 19-20) He asked his supervisor to confirm the text message, who told

him it was a “headquarters” plan. (Tr., at 84, & 2-3; MacLean Dep, at 92, & 11-12) Finally,

Appellant testified that he told Meeks the message’s contents (MacLean Dep, at 103-104; Tr., at


26

87-88), which did not include any regional restrictions. As discussed above, Meeks’ subsequent

article reflected the shutdown’s national scope.

This distinction is strained, reflects a double standard, and covers an issue immaterial to

whether Appellant made a good faith mistake. The AJ did not consider the necessary factors for

a determination, and his conclusion is not an adequate basis to dismiss his credibility because it

is contradicted by the entirety of the record.

C. Appellant’s testimony was consistent.

The AJ applied the Ninth Circuit’s reasoning that general RON mission cancelation

inherently included specific flights as an answer itself to its own question whether Appellant

intended to break the law. But the AJ went a step further. He stated that holding the belief they

are different meant Appellant also somehow was contradicting himself. (ID, at 18).

This issue must be addressed, because the contradiction comes from the AJ, not

Appellant. As a matter of law, Appellant respects that the Ninth Circuit has ruled the information

was SSI. The AJ offers no reasoning, however, for the conclusion’s premise: a person cannot

reasonably, in good faith conclude that reporting mass cancelation of hundreds to thousands of

flights is the same as disclosing information about a specific flight. As seen above, he made the

identical distinction in the constitutional context. Nor did the AJ offer any questioning at hearing

on why Appellant’s perspective was inconsistent.

There should not be any doubt. In every context of the record, without qualifier

exception or inconsistency, Appellant summarized an identical perspective for what he believed

is organically SSI, without a marking, when he made the disclosure: information about specific

flights that could identify undercover agents. That meant flight numbers, seating assignments,


27

arrival gates, or other information that gave away the FAMs’ identity. (Tr., at 104-107; MacLean

Dep, at 50-53, 78-79, & 86-87)

Similarly, Appellant consistently testified that he did not believe the text message was

SSI – when he received it, (ICE/OPR ROI, at 2; ICE/OPR af, at 2; MacLean Dep, at 95-96; Tr.,

at 118-119, & 123-124) or when he disclosed it throughout the Agency and eventually to the

public and Congress through Mr. Meeks. (ICE/OPR ROI, at 2; MacLean Dep, at 118, at 120-

121; Tr., at 108) The Ninth Circuit had not issued its decision when Appellant acted, and while

he lost that does not mean a lay person could not in good faith have come to the opposite

conclusion.

D. Appellant did not intend to violate the law.

While irrelevant to Appellant’s motives, the AJ also attacks Appellant’s credibility

generally due to lack of remorse. (ID, at 18, 31) The AJ’s conclusion is not literally accurate, as

Appellant expressed remorse about undermining the Agency’s credibility and causing his family

to suffer. (Tr., at 114) Appellant does not contest, however, that he thought he was doing the

right thing through his disclosure.

The AJ’s conclusion does not address a critical factor -- why Appellant did not express

remorse. It was because he thought he was acting within the law, and because he made a

difference by stopping government illegality that threatened to abandon core air security

defenses during a terrorist alert. (ICE/OPR affidavit at 3; MacLean Dep, at 93-94; Tr., at 90,

110-111, & 122) Appellant’s testimony at hearing was clear in every context where lack of

remorse was expressed, including the ICE/OPR affidavit and Dep cited by the AJ, that he also

did not think he was breaking the law. (ICE/OPR ROI at 2; ICE aff at 2; MacLean Dep, at 95;


28

Tr., at 113, 118, & 122) The AJ does not explain why this belief itself undermines credibility. At

most, its relevance depends on whether Appellant’s error was good faith. It is not probative as a

factor to prove bad faith. Appellant readily qualified at hearing that it would be a different

decision to violate the law, and he does not accept breaking the law as an acceptable means to

fight government illegality. (Tr., at 113, at 118, at 122)

E. Appellant’s good faith is consistent with his commitment to legitimate law

enforcement secrecy throughout his career.

The AJ did not consider Appellant’s overall commitment to law enforcement secrecy, in

rejecting credibility for a good faith mistake. The finding that Appellant intentionally violated

the SSI rules is inconsistent with every other aspect of his career. In over 14 years of TOP

SECRET military (Exhibit S) and law enforcement duties with sensitive or classified

information, he never has been accused of or found in violation of any secrecy restriction.

(Exhibit S; Exhibit H, at 2) This included his sustained campaign as a public critic for FLEOA,

in which any error would have been grounds for attack.

Even more significant, the AJ did not consider the credibility impact of Appellant’s

repeated FLEOA whistleblowing disclosures that risked retaliation in order to pursue a public

campaign against mismanagement that institutionalized security breaches and SSI releases to the

media. Appellant made these disclosures in every context, from DHS/OIG to the ICE/OPR, the

national media and Congress. (Exhibit L; Exhibit RR; Exhibit Z) Appellant testified passionately

against the inherent misconduct connected with disclosing information that exposed agent’s

identities, because this would prevent them from protecting the public.

Thomas D. Quinn, the Director of the Federal Air Marshal Service, and his executive staff are setting up commercial aviation for catastrophic failure by violating the law, gross waste of funds, abuse of authority and overall gross mismanagement that endangers public health and safety. Their checkpoint bypassing procedures, aircraft pre-boarding procedures,


29

mandatory hotel policy, dress and grooming codes and their policy of. divulging Sensitive security Information to the media. . . . Only the victims of the 9/11 attacks give me the strength and fortitude to accomplish my missions despite of the constant anxiety of having to counter a possible in-flight ambush made possible due to Director Quinn’s deadly policies and gross mismanagement. (ICE/OPR affidavit) (ICE/OPR affidavit, at 3) Eileen Dizon Calaguas, Agency counsel: So, when did you first engage in whistle blowing

activity, as you understand it?

Appellant: When I reported to Brock Meeks that the Agency was breaking the law in July of 2003, at the same time that Homeland Security issued a memo on July [26th] that terrorists wanted to highjack flights leaving the East Coast, and hiding weapons in cameras.

. . . Ms. Calaguas: With the entities that you've described as entities

that you’ve disclosed whistle blowing activity to, what did you talk about? In other words, what were you whistle blowing about, as you understand it?

Appellant: Checkpoint bypassing procedures, aircraft boarding

procedures, dress and grooming codes, mandatory hotel policy, and the FAM Service Management’s constant desire to divulge sensitive information—

(MacLean depo., at 122)

This sustained commitment to fighting secrecy breaches is inconsistent with intentionally

engaging in the same offense, and then openly volunteering that it occurred.

F. Objective factors provide a good faith belief basis for Appellant’s reasonable

belief.

The AJ overlooked a series of objective factors that support Appellant’s credibility.

Taken in combination, they would demonstrate that he a reasonable belief equivalent to that for

protected speech under the Whistleblower Protection Act.9

9 Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999)


30

1. The Agency did not treat the text messages as SSI in compliance with its own

rules. Initially, it is not disputed that Agency policy requires SSI to be marked as such. As

both witnesses testified, the text message was not. (Tr., at 42, 87-88) Appellant testified

that as a rule for him, markings were his guide because the Agency practices were so

inconsistent and arbitrary. For instance the Agency’s Las Vegas office left FAM schedules

in open pigeon-hole mailboxes to which the janitor had access (MacLean Dep, at 76-77),

while marking “going away parties and coffee get-togethers” as SSI. (MacLean Dep, at 74-

75).

Similarly, it is undisputed that Agency policy requires SSI to be sent to a restricted,

controlled audience with explicit Limited Distribution instructions. Agency policy requires

that SSI be password-protected when sent electronically outside a controlled environment

such as inside an Agency facility between Agency employees. As both witnesses testified,

this text message was not. (Tr., at 41-42 & 74)

As Appellant testified and Mr. Donzanti did not dispute, the message was broadcast

to common mobile cellular Nokia telephones, when mobile, cellular, password-protected,

encrypted Palm Tungsten W Personal Data Assistants (PDA) were available. Indeed, the

message was sent to every Agency Federal Air Marshals’ (FAM) in the nation Nokia

including anyone who inherited a former FAM’s Nokia telephone number. The message in

question was sent from Agency’s “@secureskies.net” domain email account to a list of

thousands of 10-digit numbers attached to this AT&T Wireless domain:

“@mobile.att.net”. If a FAM’s Nokia mobile number was 702-555-1234, the email sent


31

from “@secureskies.net” was sent to [email protected], so any AT&T Wireless

customer and non-Agency employee who was assigned a former Agency employee’s Nokia

number, received a copy of the late July 2003 text message. It is not in dispute that Agency

policy is only to send SSI electronically through an encrypted, password-protected secure

device, such as the Palm PDAs that were set up and configured for those sensitive

transmissions. As Appellant testified and Mr. Donzanti did not dispute, the text message

was not. (Tr. 41-42, 74, 77, & 83) As discussed above, Appellant felt that the late July

2003 text message was broadcast like a person using a bullhorn in a public plaza. (Tr., at

89)

It is not disputed that Agency policy requires a security plan for maintenance and

earliest possible destruction of SSI. As Appellant testified and Mr. Donzanti did not

disagree, there was none for the text message. (Tr. 41-42 & 74)

Finally, it is not disputed that Agency policy requires location of SSI to be limited

to a secure, restricted area. As Appellant testified and Mr. Donzanti did not dispute, the

text message was not. (Tr., at 41-42 & 124)

Appellant’s mistake was particularly understandable in context. The information’s

uncontrolled release was in nearly total contrast with the terrorist alert briefings, when the

Agency imposed secrecy restrictions impossible to misunderstand.

While the Ninth Circuit’s most specific instruction was to consider the relevance of these

factors to cause good faith confusion, the AJ’s decision does not consider their impact at all other

than to reject that they outweigh his other credibility concerns.


32

3. Agency leadership’s release of information contradicts the SSI standards

applied against Appellant.

As discussed above, Appellant actively protested what he believed were regular

management releases of information that he believed was SSI, because it exposed undercover

agents’ identities. The inconsistencies occurred with respect to public announcements about

schedules as well. To illustrate, at an August 6, 2006 press conference on London airport

bombings, DHS Secretary Chertoff responded to press queries as follows:

Question directed at Secretary Chertoff: “Yes, are the air marshals just going to Britain for flights coming this way, or are they going to other European cities, as well?”

Secretary Chertoff: Well, we have air marshals all over the world. We're going to continue to have air marshals operate in the system, but we will be focusing, at least in the short term, on putting extra air marshal resources in this particular

route because we know this was the focal point of the conspiracy that is in the process of being disrupted.” . . . . . . federal air marshals are being sent to the United Kingdom to provide expanded mission coverage for flights between the United Kingdom and the

United States. http://www.dhs.gov/xnews/releases/pr_1158349691914.shtm (Exh. UU) (emphasis supplied)

This announcement was far more specific on particular flights and routes than Appellant’s

warning that all coverage had been canceled.

4. Appellant’s peers shared his belief that the text message was not SSI.

The AJ did not consider how Appellant’s good faith mistake is more credible, in light of

his views reflecting a significant sample of peers. Mr. Issman, from the ICE/OPR, another

outspoken critic of secrecy breaches, wrote to Congress that at no time did Appellant or the other

FLEOA leaders release sensitive or critical information. (App. Exh. 5; Tr. At 32) Similarly,

when Appellant spoke with his supervisor and OIG officials about the cancelation of RON


33

missions, none cautioned that he should treat the information as confidential. Rather, they

seemed to view the development as a joke. (Tr. 85-9)

Neither the AJ nor Mr. Donzanti considered the opinion of Agency FAMS headquarters

Employee Relations Special Agent in Charge Maria del Carmen Perez (Exhibit QQ), a highly

knowledgeable peer who was unsure if the disclosure warranted termination, in part due to lack

of the text message’s lack of specificity.

The most significant peer to share Appellant’s confusion was the Deciding Official, Mr.

Donzanti. The following exchange occurred after his testimony confirming the long list of

Agency SSI policies not complied with for the text message. “Q. So I’m asking if that [his

answers on compliance with Agency policy] would have raised any questions in your mind

whether the Agency treated this information as SSI?” A. “Yes. It would have.” (Transcript at

40-45) The AJ did not base an adverse credibility determination against Mr. Donzanti for being

confused by the Agency’s uncontrolled treatment of the text message, although he also testified

at hearing that anyone should have known the text message was SSI. (Tr. At 20, 29)

5. Appellant’s consistent belief that he acted legally reflected the law at the time.

As discussed, Appellant consistently, without exception or qualifier, testified in every

context that he did not intend to violate the law. (Tr., at 113, 118, &122) At the time, there was

every reason to maintain that opinion with respect to the WPA. Until June 2009 the law was

clear that Agency regulations cannot override the free speech right to publicly disclose non-

classified information evidencing illegality, gross mismanagement or a substantial and specific

danger to public health and safety. It is undisputed that was Appellant’s intent, and that his

concerns were reasonable.


34

On balance, there is ample basis for the Board to substitute its judgment for the AJ’s on

credibility and lack of intent to disclose SSI information or otherwise violate the law

III. THE ADMINISTRATIVE JUDGE ERRED IN RULING THAT APPELLANT

HAD ADEQUATE NOTICE THAT HE WAS ENGAGING IN MISCONDUCT. The AJ contends that because Appellant was trained that SSI shields particular flights, he

was on notice that SSI includes broad statements that inherently include particulars. (ID, at 32-3)

This is not disagreeing with, but rather ignoring, Appellant’s testimony that he thought general

and specific mean different things. Further, the AJ does not provide any record references that

training taught the same conclusion as his about generic policy cancelation constituting SSI.

The only policy which appears to govern the disclosure issue in this proceeding is the

Interim Policy located at AF tab 4N. The other policies cited by the Agency in its Agency file do

not apply, since they were clearly promulgated after the July 29, 2003 disclosure, (AF tab 4B,

4D, 4L, and 4M), and cannot be retroactively applied.

However, with respect to the Interim Policy at AF tab 4N, there is no evidence in this

hearing adduced by the Agency that Appellant was aware or even should have been aware of the

Interim Policy apparently relied upon by the Agency to support its charge. (This is also true of

policies cited at AF tabs 4R, 4V, and 4W, which have not been demonstrated to have been

disclosed to Appellant prior to July 29, 2003). (The Agency does not refer to any other rule

extant in 2003, which governs this proceeding.) The record does not disclose that the specific

Interim Policy was actually read by Appellant prior to his July 2003 disclosure, or that he

represented to the Agency that he read it. Indeed, there is nothing in the record indicating that the

Interim Policy was even disseminated to Appellant or other FAMs prior to his disclosure or that

it was otherwise available for review, Although Appellant signed for and reviewed the Agency’s


35

handbook regarding conduct (see AF tab 4Q), there is no evidence in the record as to what

precisely was contained in that handbook, and it does not appear that the handbook signed for

and reviewed by Appellant had the Interim Policy contained within it.

The only evidence at the hearing material on Appellant’s knowledge of SSI was the

testimony of Appellant himself (Tr., at 71-79), who summarized what he learned from largely

anecdotal training. He indicated that soon after he was hired as a FAM on October 14, 2001, he had a

relatively short training period during which SSI was discussed on an ad hoc basis. Appellant

indicated that he was given a pamphlet of some sort regarding SSI, but neither the pamphlet nor the

text of any information contained in that pamphlet is part of the record in this matter. Appellant

testified that he discussed SSI in summary fashion (with no explicit recapitulation of the summary)

with his instructors and was only given a few concrete examples of what SSI might consist of. These

examples included specifying flights and/or seat assignments regarding flight numbers. In addition,

Appellant understood that any information that was labeled or marked as SSI was to be considered

SSI.

Appellant's testimony regarding anecdotal examples of SSI is the only proven instruction he

received regarding SSI prior to his disclosure in July 2003. No Agency representative instructed

Appellant to consult any resource to learn about SSI other than the training regimen described above.

There is no testimonial or documentary evidence indicating that Appellant received any SSI

instruction other than the information he testified about.

Most fundamentally, there is no evidence in this record that, at any time prior to Appellant’s

disclosure in July 2003, the Agency provided any overarching functional definition of SSI to

Appellant to aid his own determination in the event he received information without the protective

SSI label. Appellant was in no better position than Mr. Donzanti, who shared his confusion.

Moreover, it is not clear where the Interim Policy could have been found prior to July 2003. The

Agency has failed to indicate precisely where the Interim Policy was published, who had access

to it, and whether the FAMS were instructed as to how to access this policy or for that matter


36

instructed even that the policy existed in the form set forth at AF tab 4N. This is likewise the

case with the information at AF tabs 4R, 4V, and 4W.

The issue of lack of notice is significant, because a policy must be known to the

employee in order to be violated. Standing substantive policies, such as the Interim Policy, must

be properly and expeditiously communicated to an employee, before an Agency may impose

discipline for violating such a policy. See e.g. Keeffe v. Library of Congress, 777 F.2d 1573 (D.

C. Cir. 1985). Although the Agency does not claim that Appellant intentionally and willfully

disobeyed a standing policy regarding the handling of SSI, the issue of whether Appellant

should have been aware of the applicable Agency policy in this proceeding (the Interim Policy at

AF tab 4N) is very much Dependent on whether the Agency took reasonable steps calculated to

notify Appellant of its then purported standing policy (the Interim Policy or any other policy)

governing SSI information.

The record is barren regarding such notice except for the anecdotal examples provided to

Appellant on an ad hoc basis during his very short training period prior to going out into the field

in 2001. In the absence of a charge of intentional and willful refusal to obey a standing policy,

the claim here is Dependant on the assertion that Appellant negligently or otherwise

unintentionally failed to obey an order. See Hamilton v. U.S.P.S., 71 MSPR 547 (1996). In the

case of an alleged negligent failure to follow an Agency standing policy, the Agency may prove

the charge only by establishing that proper instructions or standing policies were actually given

to an employee and that the employee failed to follow them regardless of intent. See Id. at 556.

There is no showing in the record that Appellant was informed by the Agency or

otherwise knew or should have known that the text message received by him, sans any restrictive

label, through an unsecured medium was somehow restricted information. Further, the Agency


37

has not demonstrated that Appellant was informed of any litmus type test which would help

determine whether particular information disseminated to him in a given context, such as

unsecured information without restrictive labels, is restricted.

Because Appellant was free to steer between lawful and unlawful conduct, the Courts and

the Board insist that laws, regulations or Agency policy give a person of ordinary intelligence a

reasonable opportunity to know what is prohibited, so that the employee could act accordingly.

Lack of notice could trap the innocent, like Appellant, by not providing fair warning.

IV. THE ADMINISTRATIVE JUDGE ERRED BY ACCEPTING THE AGENCY

PENALTY A. The AJ erred in applying the Douglas factors.

Douglas v. Veterans Administration, 5 MSPR 280, 305-06 (1981), established the criteria

for Board review of whether an Agency’s penalty is reasonable, with the following illustrative

factors -- (1) the nature and seriousness of the offense, and its relation to the employee's duties,

position, and responsibilities, including whether the offense was intentional or technical or

inadvertent, or was committed maliciously or for gain, or was frequently repeated; (2) the

employee's job level and type of employment, including supervisory or fiduciary role, contacts

with the public, and prominence of the position; (3) the employee's past disciplinary record; (4)

the employee's past work record, including length of service, performance on the job, ability to

get along with fellow workers, and Dependability; (5) the effect of the offense upon the

employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in

the employee's ability to perform assigned duties; (6) consistency of the penalty with those

imposed upon other employees for the same or similar offenses; (7) consistency of the penalty

with any applicable Agency table of penalties; (8) the notoriety of the offense or its impact upon

the reputation of the Agency; (9) the clarity with which the employee was on notice of any rules


38

that were violated in committing the offense, or had been warned about the conduct in question;

(10) potential for the employee's rehabilitation; (11) mitigating circumstances surrounding the

offense such as unusual job tensions, personality problems, mental impairment, harassment or

bad faith, malice or provocation on the part of others involved in the matter; and (12) the

adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the

employee or others.

The Board reviews a Deciding Official’s choice to assure that management judgment was

properly exercised, and that the penalty did not exceed the maximum limits of reasonableness.

The Deciding Official cannot just go through the motions. He must appropriately consider and

weight all relevant factors, including mitigation, or the Board need not defer to his choice of

penalty. It is insufficient merely to rely on the nature of charged misconduct. Parsons v.

Department of Air Force, 707 F.2d 1406 (D.C. Cir. 1983); Woebcke v. Department of Homeland

Security, 2010 WL 1889080, slip op. at 4.

For the reasons below, Appellant contends that while citing Woebke the AJ erred by not

applying its standards to the DO’s assessment of this record, leaving the Board free to substitute

its own judgment.

1. The AJ failed to assess Deciding Official Donzanti’s credibility.

While attacking Appellant’s credibility, the AJ did not make corresponding findings for

the Deciding Official. Based on the circumstances and record, that assessment was necessary.

To illustrate, the AJ ignored that Mr. Donzanti’s hearing testimony contradicted his deposition

statement that he would have fired Appellant even if he had a lawful right to make the text

message disclosure. Compare Tr., at 61, with Donzanti Dep., at 102-03). Similarly, at hearing he


39

said that Agency SSI training has been adequate (Tr. At 40-41), but in his deposition he

contended the opposite. (Id., at 70, 77-78, 80-83, & 94)

Most basic for credibility, the AJ failed to assess whether Mr. Donzanti was acting for

himself, or as a messenger for the same headquarters management officials and office targeted

by FLEOA’s and Appellant’s disclosures. As discussed below, Mr. Donzanti did not engage in a

serious consideration of Douglas factors. At hearing he conceded not drafting the final decision

that he signed, and could not remember if he had any impact on its contents or even changed a

word. (Tr., at 49, 61)

Other than the Human Resources office with generic duties, Mr. Donzanti explained that

his liaison for the action against Appellant was the PCU. (ID, at 35; Tr., at 49-50). In practice,

the PCU carried out headquarters assignments for Director Quinn in the FLEOA conflict, such as

seeking an investigation of Appellant. (Exh 4) Its central role ushers in Mr. Quinn’s animus as a

factor to consider. Its partnership with the passive Mr. Donzanti establishes that the process

behind his signature be reviewed for bias. Bias by the Agency personnel setting a penalty long

has relevant factor to assess compliance with the Douglas factors. Coons v. Department of Navy,

15 MSPR 1 (1983). This process was severely tainted.

Within this context, the AJ engaged in harmful error by not allowing post hearing

evidence that Mr. Donzanti was removed from his job, due to sexual harassment that had

occurred but not been subject to accountability under Director Quinn. This action based on prior

misconduct reveals a conflict of interest that impaired Mr. Donzanti’s independent judgment in

2006 that left him vulnerable to headquarters preferences. The AJ rejected the motion, on

grounds that it could have been raised at hearing to impeach him. (Tr., at 10-11) But Appellant


40

moved to admit the demotion and reassignment, not the underlying conduct, as relevant

evidence. The personnel actions did not occur until February 2010.

2. The Deciding Official did not fulfill his responsibilities to apply the Douglas

factors. The reasonableness for Mr. Donzanti’s choice of termination is generically undermined

by the lack of diligence for any of his individual judgments. At hearing, Mr. Donzanti conceded

that he did not – consider job performance, which was “exemplary”; consider whether Appellant

intended to violate the law; consider whether there were any mitigating circumstances; compare

his choice with the range of penalties imposed for SSI releases; ask Appellant if he knew the

Meeks disclosure was unauthorized; learn the nature of Appellant’s SSI training; communicate

with anyone at ICE OPR connected with the investigation; check with the Agency’s SSI expert

whether Appellant had the basis for a good faith mistake; communicate with Maria Del Carmen

Perez, the Agency Special Agent in Charge, Office of Employee Relations, Mission Support,

whose view was that the timing and lack of specificity did not support Appellant’s termination;

check with past supervisors for any history of security violations; impose or offer any

instructions, guidance or additional training to Appellant about unauthorized disclosures, after

receiving the June 16, 2005 ICE/OPR ROI until Appellant’s September 14, 2005 “Proposal to

Remove”; restrict Appellant’s duties during the June through October interim; take any actions

to restrict Appellant’s security clearance or access; take any actions to restrict Appellant’s access

to the Agency’s secure portal and FAMs’ schedules until 2006; or try to place Appellant on

administrative leave or restricted duty during the interim, although the former could occur within

a month and the latter within one-two days. (Tr., at 18, 20, 21, 28-9, 33, 35-8, 40, 45, 57-9)

Mr. Donzanti agreed, but provided no weight despite finding that Appellant – was a first

time offender with an otherwise clean record; was not malicious in his actions; had good


41

intentions; did not engage in any unauthorized disclosures during the 2.5 years under Mr.

Donzanti’s supervision; that Agency policy always has required SSI to be marked; that the text

message was sent in an uncontrolled manner without password protection; that SSI must be kept

in a secured, controlled environment, which did not occur with the text messages; and that under

the circumstances he too would have questioned whether the Agency wanted to treat the text

message as SSI (Tr., at 14-17, 21, 37, 41-3, 45) None of these are background considerations.

They are the issues that must be resolved to determine if Appellant engaged in irresponsible

judgment, and even if so has proved himself worthy of a second chance.

Most significant, Mr. Donzanti did not consider any mitigating factors. (Tr., at 21)

At hearing, Agency counsel inquired, “Were you aware of any mitigating circumstances in terms

of Appellant making that disclosure?” He responded, “No. No.” (Tr., at 21) At hearing he only

discussed one, responding to Agency counsel that he didn’t need to consider SSI markings as a

mitigating factor, but also agreeing with Appellant’s counsel that they are important and should

be applied. (Id., at 54, 60-61) It is unreasonable that he did not consider it a mitigating factor that

the composite uncontrolled circumstances were so confusing that he too would have had

questions about the text message’s status.

Although not considered a mitigating factor by Mr. Donzanti, the AJ applied his

testimony on the circumstances of the disclosure in that light. While crediting Appellant’s

concern for over air security vulnerability and his good intentions, Mr. Donzanti emphasized,

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. As he may have good intention, but he was – he was misguided and didn’t have all the information. (ID, at 35)

What the AJ did not consider, however, is the extensive evidence that Appellant first

thoroughly did his homework, before taking time sensitive action that he believed lawful to


42

prevent a tragic mistake during an unprecedented hijacker alert more ambitious than the

September 11, 2001 attacks. He went to his supervisor and made three inquires to the DHS

Office of Inspector General. From them he learned that headquarters had offered no national

security or terrorism basis for canceling RON coverage. Rather, the point was to avoid hotel

charges, because the Agency had spent its budget too quickly. Similarly, neither the AJ nor Mr.

Donzanti considered that Appellant’s homework turned out to be sufficient. He was right. There

was no hidden national security reason, and even the Agency denied ever making the decision.

Mr. Donzanti did not undertake a good faith review of the Douglas factors, and merely

listing their existence is insufficient. On this ground alone, the Board is entitled to substitute its

own judgment.

3. The AJ erred by unreasonably determining the factors considered.

a. Nature and seriousness of the offense. The AJ and DO conceded that Appellant

was not malicious, did not seek personal gain, and the misconduct was not repetitive. (ID, at 31,

34-5) While Mr. Donzanti did not consider intent, the AJ resolved this issue by reiterating the

same arguments on intent, lack of remorse and inconsistent testimony addressed previously.10

That leaves only the disclosure’s impact. While Mr. Donzanti initially stated that the

offense was serious because it created vulnerability, in the end he conceded the actual harm was

merely administrative disruption to make re-scheduling corrections. (ID, at 30-31) The Agency

already has taken the public position, however, that the cancelation order was a mistake. The

Agency cannot have it both ways. Accepting its public posture, Appellant’s offense caused no

actual harm. Indeed, he may have minimized the administrative disruption by sparking earlier

corrective action than would have occurred had he remained silent.

10 The AJ also applied that reasoning to conclude Appellant was on notice and had been warned. See also supra, at

___ The AJ’s analysis directly quotes Appellant, but doesn’t recognize the distinction that mattered to him on

whether information is restricted – references to an exact gate, specific airline or individual flight. (ID, at 33)


43

b. Notoriety of the offense. The AJ and Mr. Donzanti said that the notoriety of the

offense warranted termination, because it “undermined the public’s confidence in the Agency’s

ability to prevent a terrorist attack.” (ID, at 34) The AJ also found, however, “I have no reason to

doubt that Appellant’s disclosure improved FAM presence on Las Vegas RON flights up to

August 9, 2003 ….” On balance, the AJ is concluding here, consistent with the rest of his

opinion, that it was more significant that the Agency not be embarrassed, compared to the public

not being protected during a hijacking threat more ambitious than the September 11, 2001

attacks.

As a matter of law, Agency embarrassment should not be grounds for discipline due to

exposing a breach of the public trust. With respect to this factor, as well as nexus with efficiency

of the service and constitutional rights, Appellant suggests the vehicle to resolve conflicts

between Agency self-interests and mission-interests should be the first canon in the Code of

Ethics for Government Service; 5 CFR Part 2635, required by law to be displayed in every

government office, PL 96-303, 94 Stat. 855 (July 3, 1980): “I. Put loyalty to the highest moral

principles and to country above loyalty to persons, party, or Government Department.” This

factor should weigh strongly in Appellant’s favor.

c. Supervisory confidence and failure to consider lesser penalties. Mr. Donzanti

testified that after learning of Appellant’s disclosure, he lost all confidence in the latter’s ability

to handle SSI information – a requirement of every job and an excuse not to consider any

sanction besides termination. (Tr., at 21-2) As the Board has recognized in Woebcke, supra, slip

op. at 7, however, it is relevant when an official’s own behavior belies his testimony. In that

case, a DO allowed a law enforcement officer to continue carrying firearms.


44

The AJ should have considered that portion of the record. The supervisory confidence

demonstrated by deed is much higher than in Woebcke. Despite Mr. Donzanti’s lack of

confidence for Appellant to handle any job, from June-September he did not reduce Appellant’s

duties in any way, provide any additional counseling or security training, formally or informally

take any steps to restrict his access to classified information; or even try to take any action of any

kind that reflected his total breakdown in confidence. Even after removal from the job, Appellant

continued to enjoy access to restricted information. Although the AJ accepted Mr. Donzanti’s

explanation that action would have taken too long (ID, 39), the AJ disregarded the evidence that

the process would take from days to a month, and had been done before. The testimony is not

credible.

As a result, the termination cannot stand. Since establishment of the merit system, the

primary principle behind progressive discipline, including the Agency’s policy, is that greater

penalties should not be imposed than necessary to promote the efficiency of the service.

Crumbaker v. Department of Labor, 7 MSPR 84 (1981); (Agency Exh 4 Q)

d. Potential for rehabilitation. Like other factors, the AJ and Mr. Donzanti’s adverse

finding rests on Appellant’s lack of remorse, discussed earlier. It also is significant, however,

that Mr. Donzanti did not check with Appellant at the time whether he thought the disclosure

involved SSI, or whether he was open to acting illegally. At hearing, Appellant testified that he

was closed to the concept of breaking the law to enforce it. (Tr. 113, 118) Mr. Donzanti’s

conclusion is even more unreasonable, in light of 2.5 years uninterrupted, exemplary service

without any security related incidents. The Deciding Official had a responsibility to assess all the

relevant factors for rehabilitation potential. Woebcke, at 7.


45

e. Comparative discipline. Mr. Donzanti did not consider comparative discipline for

other unauthorized SSI releases, but the AJ determined they were consistent. (ID, at 35-37) The

AJ based his conclusion by distinguishing Appellant from each of three cases that involved

suspensions for the same offense used to terminate Appellant, unauthorized SSI release.

Woebcke, at 10-11, requires the Agency to prove a legitimate distinction in order to justify more

severe discipline. In each instance, the AJ’s comparison fails under this standard, because they

involved lesser penalties for worse misconduct.

The first example concerned “AR,” who received a 14 day suspension for posting on the

internet that TSA/FAMS coverage on flights from Atlanta to London had been canceled, despite

the DHS Secretary’s public statements to the contrary in the aftermath of a liquefied Improvised

Explosive Devices (“IED”) plot. The AJ defends AR’s reduced discipline because he was

disclosing speculation, rather than officially confirmed Agency action, without explaining why

speculation is superior or why the difference justifies termination. (ID, at 35-6)

In reality, AR’s behavior was far less responsible, with increased security risk. Appellant

deserves credit for first seeking the truth internally, compared to immediately broadcasting an

explosive question on the Internet. Second, AR disclosed information much more specific than

Appellant – the flights between specific airports of two countries, as compared to a blanket

cancelation of missions. Third, AR disclosed the absence of coverage eight days after it had gone

into effect, creating a vulnerability to ongoing flights. Appellant’s warning was five days before

cancelation of coverage was scheduled to begin. No current passenger traffic was endangered,

and as occurred there was time to correct the mistake. As discussed earlier, the Agency’s

Employee Relations SAC advised that timing undermined a termination penalty. On balance, the


46

evidence not considered by the AG suggests that’s Appellant discipline if any should be

proportionately less than a 14 day suspension.

A second example involved “JS,” who was suspended for revealing his agent status,

mission and partner’s identity in order to reassure a passenger after failing to properly conceal

his firearm. (ID, at 36-7) The AJ summarizes the distinctions in circumstances without justifying

why the offense by JS is less serious. In fact, JS revealed the most specific possible security

details that security restrictions are designed to protect, not the public safety consequences of an

unannounced policy decision. Further, JS engaged in the security breach without first trying safer

available options. Appellant first tried to work through his supervisor and then the OIG three

times, before he went public as time was running out.

The third example involved “JM,” who was merely suspended for disclosing specific

flight information to enable personal liaisons with flight attendants. The AJ noted the differences

in circumstances with Appellant. (Tr., at 37) The distinctions are not legitimate to support lesser

discipline. JM was acting for personal gain. Appellant was acting to defend the public. JR was

providing the most specific flight details forbidden by training, whereas Appellant disclosed

broad cancelation. But JR was not merely disclosing to his wife, the training hypothetical. He

doubled the security breach by risking vulnerability to the ancient practice of espionage through

jobs that create opportunities for sexual liaison with police or agents.

B. The Administrative Judge erred to conclude that Appellant’s removal increased

efficiency of the service.

The AJ found a sufficient nexus that Appellant’s termination benefits the efficiency of

the service to sustain the penalty. His support for this conclusion is that Appellant’s disclosure

created a potential vulnerability, forced the Agency to engage in rescheduling, and contained


47

generalized statements that inherently include specifics and therefore violate SSI restrictions.

(Tr., at 28-29)

The AJ’s conclusion can withstand neither his own analysis, nor the weight of the record.

While Appellant may have created speculative “vulnerability” to harm, the AJ already concluded

that he actually improved the efficiency of the service in terms of the Agency’s public safety

mission, and that there was no actual harm beyond speculative administrative disruption

necessary to correct a mistake.

The AJ’s on balance assessment of actual impact on the efficiency of the service not only

is controlling for nexus, but for the constitutional and Douglas findings as well:

In this case, the Agency appears to agree with Appellant’s assertion that his disclosure did not harm the Las Vegas RON flights at issue, and explains that steps were taken to directly address the RON missions for a specific period at issue. Indeed, I have no reason to doubt that Appellant’s disclosure at issue improved FAM presence on Las Vegas RON flights up to August 9, 2003 based on the undisputed fact that Agency resources were then reallocated to some degree to address these specific Las Vegas RON flights. (Tr., at 26)

In short, in terms of consequences Appellant strongly increased the efficiency of the service.

With respect to control of Agency resources, the Agency’s own position is that the text

message was a mistake. That means Appellant’s early warning again improved the efficiency of

the service.

The AJ assumes that nonetheless Appellant caused some disruption, and it is sufficient to

justify his termination because he challenged the Agency’s control of its own resources. More

than any marginal administrative cost, the AJ made his net adverse determination on efficiency

of the service as a matter of principle. Appellant’s termination would increase the efficiency of

the service, because he made a difference that affected how a government agency allocates the

taxpayers’ resources. It did not matter that the consequences were positive. Partly the AJ


48

reasoned that Appellant’s conduct was unacceptable, because he did not know as much as his

superiors, as Mr. Donzanti testified. More fundamentally, as the AJ candidly explained,

While the Appellant’s actions may have indeed strengthened FAM presence on the Las Vegas mission flights, as asserted, it was counter to the Agency’s interest in promoting the efficiency of the service, because in addition to considering ‘intelligence’ and other factors, the Agency was compelled to shift resources, explaining “in light of that disclosure that Appellant made, now they would have to do excessive work to either correct that or make some decisions…While I have

no reason to doubt the Appellant’s assertion that he took these actions to benefit

the nation and to increase the efficiency of the service, I find that the Appellant’s

actions undermined the efficiency of the service for the reasons discussed above.

(Tr. At 27-8)(references omitted)(emphasis supplied)11 That balance cannot coincide with the merit system. In the abstract, it would mean the

service is more efficient when the government does not correct its mistakes or make decisions

about them, because Agency authority and control of its resources trumps the government’s

mission to the public. In this instance, it means that maintaining America’s air travel defenses

during a terrorist alert for a massive attack is not worth administrative disruption, even when

minimal or nonexistent. For employees it means the only option for professional survival is as

“yes persons” to Agency authority, regardless of the public consequences.

This case presents an opportunity for the Board to revive the Code of Ethics for

Government Employees, so that it becomes more than wall paper. The first principle of the Code

should be controlling for facts such as this instance of conflicting loyalties between Agency and

nation. The efficiency of the service is not served by sacrificing merit system principles for

secrecy and blind obedience to Agency control that betrays the public trust.

V. THE AGENCY VIOLATED 5 USC 2302(B)(10) THROUGH RETALIATION

FOR APPELLANT’S DISCLOSUTRES AND OTHER ADVOCACY AS A

LEADER OF THE FEDERAL LAW ENFORCEMENT OFFICERS

ASSOCIATION.

11 These priorities also reflect the perspective of the Deciding Official, who testified that he would have fired

Appellant for his disclosure, whether or not it was legal. (Donzanti Dep, at 102-03)


49

At hearing Appellant contended the Agency investigated and fired him, because he organized

and helped lead a FLEOA chapter for the FAMs. Appellant contended and submitted extensive

evidence for his belief that the ICE/OPR investigation was retaliatory for FLEOA, along with a

steady stream of additional investigations against him and other FLEOA leaders, including the

successful effort to have him terminated instead of receiving a suspension like other Agency

employees. (Exhibit 4, 5, Z, at 21-22; Exhibit JJJ; Exhibit F; Exhibit LL, Exhibit at 6; Quinn

Dep)

The AJ rejected the claim, explaining that the ICE/OPR investigation was for Appellant’s

appearance on NBC Nightly News, not for FLEOA activities. The AJ further rejected the

defense, because Mr. Donzanti was a FLEOA member himself for 25 years, and Donzanti did

not talk with or make any other attempt to influence the ICE/OPR investigators. (ID, at 22-23)

Significantly, beyond noting Mr. Donzanti’s organizational membership, the AJ does not

challenge the merits for this alleged prohibited personnel practice. More specifically, his decision

does not contest evidence in the record that – 1) Appellant was a leader in establishing and

operating a TSA/FAMS FLEOA chapter (Hearing tr., at 60; Exhibit 5;); 2) Appellant organized

the FLEOA chapter and used it as a platform to make disclosures of safety and security

violations by FAMS management generally and Mr. Quinn in particular (Exhibit 7; Exhibit Z, at

Appendix 7); 3) Mr. Quinn had intense animus against Appellant and the other FLEOA leaders

because of their efforts (Exhibit 4; Exhibit 30, at 4-5, Exhibit Y); 4) Mr. Quinn and his

headquarters staff engaged in an extraordinary pattern of requests for retaliatory investigations

directed against FLEOA leaders and members; and 4) Mr. Quinn’s headquarters staff was the

active partner preparing Appellant’s termination proposal and final decision letters, the latter

which Mr. Donzanti signed. (Hearing transcript, at 49)


50

To refresh, Mr. Quinn wrote in a February 11, 2005 memorandum to the DHS Inspector

General, and ICE Assistant Secretary Michael J. Garcia that the Appellant and his fellow

FLEOA TSA/FAMS Agency Executive Board Officers were “disgruntled,” “malicious,”

“obscene,” “irresponsible,” “abusive,” and part of a “de facto labor organization.” (Exhibit 4,

Quinn memo to ICE) He accused the Appellant and his fellow FLEOA TSA/FAMS Agency

Executive Board Officers of being “disgruntled amateurs,” “insurgents,” “terrorists” in a Wall

Street Journal media interview. (Exhibit JJ, at 4, Par. 4-5) ICE/OPR’s Issman, who ran the unit

receiving requests for investigation, was “incredulous” at the “steady stream” of “frivolous

charges” directed against TSA/FAMS FLEOA leadership, including Executive Vice President

MacLean. (Exh. 5)

A. Exercise of free speech rights can be protected under section 2302(b)(10)

The Board long has held that not all free speech disclosures are covered by the

whistleblower provision, 5 USC 2302(b)(8). For example, dissent raised in a union grievance is

adjudicated as an exercise of appeal rights, not as whistleblowing, even if it is identical to what

would be a claim under section 2302(b)(8) if disclosed in other settings. See, e.g., Page v.

Department of Navy 101 MSPR 513 (2006); See Serrao v. Merit Systems Protection Board, 95

F.3d 1569, 1576 (Fed.Cir.1996); Luecht v. Department of the Navy, 87 M.S.P.R. 297 (2000).

Appellant engaged in his safety and security dissent as a FLEOA leader and representative, and

for consistency with precedent his speech rights are worthy of protection in that context.

B. The AJ’s analysis did not consider the totality of the record or relevant issues

Despite Mr. Donzanti’s testimony of having been a FLEOA member for 25 years, he

offered no discussion of any involvment in the formation or activities of the TSA/FAMS FLEOA

chapter. Even if he believed in FLEOA, however, Mr. Donzanti’s irrelevance for the decision is


51

beyond credible dispute. As discussed earlier, despite signing the termination letter he could not

take credit for conducting any independent research on the merits of the charges as presented, or

having any impact on its contents, down to changing a word in what was drafted by headquarters

staff including the Policy Compliance Unit that carried out investigations of FLEOA leaders for

Mr. Quinn. The termination was a headquarters action, with Mr. Donzanti’s role almost literally

limited to signing the paperwork in 2006, and then defending the decision in litigation. Mr.

Donzanti’s FLEOA’s membership did not have any impact on the decision.

The AJ also explained that Mr. Donzanti did not communicate with ICE/OPR

investigators or otherwise attempt to manipulate the results. (Id.) This responds to a straw man,

because Appellant never alleged any such effort. Appellant’s contention is that Donzanti was the

official who carried out a headquarters decision to fire Appellant on whatever pretext could be

confirmed, not to manipulate the results of an investigation requested for retaliatory reasons.

In short, the AJ offered no relevant analysis for this affirmative defense.

C. Agency headquarters imposed termination as Appellant’s penalty in retaliation

for his FLEOA speech.

If Mr. Donzanti merely were formally implementing a headquarters decision, there is

overwhelming record support that selection of the termination penalty was retaliatory. The AJ

did not comment, and the record otherwise is sufficient to establish this prohibited personnel

practice: 1) Appellant was acting as a FLEOA representative when he engaged in a sustained

campaign of dissent against management security and safety breakdowns for air travel, with

regular, repetitive disclosures to Congress, NBC Nightly News television and any other

audiences that could make a difference. (Exhibit 4; Exhibit 31) 2) Agency management knew of

Appellant’s activities. 3) Agency management had almost obsessive animus toward Appellant


52

and other FLEOA leaders charging the management breakdown. (Exhibit 7; Exhibit Z, at

Appendix 7, Exhibit 5) 4) Agency management relentlessly sought investigations to find any

pretext for termination of FLEOA leadership. The SSI disclosure was a surprise weapon that

came out of the NBC Nightly News investigation, only because Appellant voluntarily disclosed

it in the context of one of the chain series of FLEOA fishing net investigations.12 5) At the same

time he made a disclosure to ICE/OPR, Appellant dissented against the same mismanagement

resulting in exposure of agents that he challenged in public and with Congress. 6) Management

has not alleged any misconduct by Appellant for which it would have fired him, other than

allegations arising out of the ICE/OPR investigation.

VI. THE AGENCY VIOLATED APPELLANT’S FIRST AMENDMENT

RIGHTS

A. Appellant’s termination violated the First Amendment.

All of Appellant’s public dissent as a FLEOA representative also was protected by the

First Amendment. Gilbrook v. City of Westminister, 177 F.3d 839,867-68 (9th Cir. 1999) The

AJ’s analysis about the Appellant’s Meeks disclosure does not apply, however, since there is no

issue that he made any unauthorized disclosures except in July 2003 before starting the FLEOA

chapter. As a FLEOA leader, Appellant engaged in a relentless public campaign attacking

management secrecy, security and safety breakdowns in every possible forum, from Congress

and ICE/OPR to the September 2004 NBC Nightly News program.

12 See., e.g., Appellant’s July 10, 2009 interrogatory and Agency response: [Appellant’s] Interrogatory No. 20:

Please provide a complete description of how the Agency discovered the facts underlying its charge that Appellant

made an Unauthorized Disclosure of Sensitive Security Information. Please also provide a complete description of how the Agency subsequently investigated the facts underlying this charge and the results of that investigation. The

Agency was unaware of Appellant’s July 29, 2003 disclosure to the media until he voluntarily admitted to this

conduct on May 4, 2005. See Agency File at Tab 4(J).


53

As a matter of law, Appellant’s advocacy should qualify as on matters of public concern,

since they revealed and led to corrective action of Agency practices that exposed, endangered

and rendered ineffective the undercover air marshals on front line duty against terrorist attacks.

ICE/OPR manager Matthew Issman explained, “Any individual who cared to observe this folly

could pick out and identify the FAMs for any given flight or airport by simply watching the gate

and exit areas.” (Exh 5, at 1)

As discussed above, this conclusion has been confirmed by authoritative third parties.

An extensive May 25, 2006 House Judiciary Committee report, In Plane Sight (Exh. Z) validated

Appellant’s criticisms and their severe impact undermining homeland security. The Office of

Special Counsel found a substantial likelihood that identical concerns demonstrated gross

mismanagement and a substantial and specific danger to public health and safety, when raised by

TSA/FAMS FLEOA President Frank Terreri.

For the FLEOA speech generally, and the September 2004 Nightly News program in

particular, the AJ did not find any countervailing management interest in efficient operations.

Nor is it plausible that there could be a disadvantage from challenging security breaches already

disclosed by Agency management. Indeed, in this proceeding the Agency made the judgment

call that Appellant’s FLEOA speech does not create any material disadvantages. It withdrew the

charges proposing his termination on those grounds, after Appellant raised WPA and First

Amendment defenses against the proposed termination. The only threat to management

efficiency noted by either the Agency or the AJ from any of Appellant’s speech is the disclosure

of SSI information to Mr. Meeks.

Appellant submits that the SSI charge was a pretext to terminate Appellant, when the

constitution and WPA blocked firing him for FLEOA speech. The arguments for retaliation


54

against Appellant’s FLEOA advocacy demonstrate a First Amendment violation as well, since

they were directed against the message he spread. To the extent that Mr. Donzanti merely

administered a headquarters decision to terminate Appellant, his penalty selection violated the

First Amendment. Since the constitution is a merit system principle, the personnel action

formalized by Mr. Donzanti is a prohibited personnel practice under 5 USC 2302(b)(12) and

should be reversed.

B. The retaliatory ICE/OPR investigation violated the First Amendment.

In rejecting Appellant’s FLEOA defense, the Administrative Judge (“AJ”) converted it to

a dispositive First Amendment violation that requires reversal of the termination.

The AJ explained, “[T]he Appellant’s testimony at hearing reflects that his unauthorized

appearance on a national news program, rather than his FLEOA activities, was the catalyst [for]

the ICE/OPR’s investigative actions including the ROI and investigative interview.” (Tr., at 23)

See also ICE OPR Report, Exh. 2, IAF-1, Tab 4, Subtab 4J, which states the basis for the

investigation is that Appellant was accused of being on the NBC Nightly News television show.

The AJ cannot avoid the implications of his finding.13 A retaliatory investigation that

leads to a personnel action is a prohibited personnel practice. It is not in dispute that Appellant’s

speech caused the probe, the only basis for his termination. No independent reasons for the

investigation have been raised, and the Agency’s own record submissions identified the news

program as cause. The only question is whether the speech is protected. As discussed above, the

NBC Nightly News television show and related speech qualified as a matter of grave public

13 As discussed above, Appellant believes prohibited personnel practices applicable to both contexts --institutional [(2302(b)(10)] and personal [2302(b)(12)] -- can apply. When Appellant spoke out as a FLEOA leader, he was

expressing his own views as well. The merit system should permit an employee to wear two hats for purposes of

protected conduct, if both fit. What is certain, however, is that an employee is entitled to wear one. If Appellant’s

first amendment rights canceled his organizational off duty conduct rights, he must be entitled to constitutional

protection.


55

concern, and Appellant’s speech as a FLEOA advocate had a positive impact on homeland

security.

Retaliatory investigations are actionable under the WPA as threatened personnel actions.

Threatened personnel actions are as illegal as actual personnel actions, because of their deep

chilling effect. The 1994 legislative history for that provision highlights “retaliatory

investigations, threat of or referral for prosecution, defunding, reductions in force and denial of

workers compensation benefits” to illustrate “threatened” personnel actions, because they are a

prelude to or create a precondition for more conventional reprisals. The primary criterion for a

prohibited threat is that alleged harassment “is discriminatory, or could have a chilling effect on

merit system duties and responsibilities.” H.R. Rep. No. 103-79, at 15; 140 Cong. Rec. 29, 353

(statement of Rep. McCloskey).

Case law has been consistent with the legislative history. In Guyer v. Department of

Justice, BN-1221-92-0310-B-1, as summarized in 116 F.3d 1497, p. 2 (Fed Cir 1997), the Board

permitted and the Federal Circuit reviewed an employee’s challenge that an investigation was

pretextual, while rejecting the claim on its merits. In Russell v. Department of Justice, 76 MSPR

317, 324-25 (1997) the Board explained,

When, as here, an investigation is so closely related to the personnel action that it could have been a pretext for gathering evidence to retaliate, and the Agency does not show by clear and convincing evidence that the evidence would have been gathered absent the protected disclosure, then the Appellant will prevail on his affirmative defense of retaliation for whistleblowing. That the investigation itself is conducted in a fair and impartial manner, or that certain acts of misconduct are discovered during the investigation, does not relieve an Agency of its obligation to demonstrate by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. See 5 U.S.C. §1221(e)(2). To here hold otherwise would sanction the use of a purely retaliatory tool, selective investigations.

Accord: Johnson v. Department of Justice, 104 MSPR 624, 631 (2007).


56

In short, the AJ’s finding means a prohibited personnel practice under 5 USC 2302(b)(12)

has occurred through the retaliatory investigation that constitutes a First Amendment violation,

as well as under section 2302(b)(10) for FLEOA advocacy. The charges against Appellant, let

alone his termination, could not have occurred but for the investigation openly taken because of

protected activity under sections (b)(12), (b)(10) or both.

C. The Meeks disclosure was protected by the First amendment.

The AJ concluded that termination for the Meeks disclosure did not violate the First

Amendment, for the same reasons and balancing of factors he used to conclude Appellant’s

termination serves the efficiency of the service. (ID, at 23-28). While conceding that Appellant

acted in good faith for the nation’s interests and succeeded in restoring TSA/FAMS coverage

[during a terrorist alert], that was outweighed by administrative disruption and embarrassment to

an extent, and fundamentally because Appellant changed how the Agency allocated its resources.

(ID, at 26).

There was no administrative disruption, however, according to the Agency’s position that

the text message was a mistake. Even if there were unique work to restore coverage, the AJ cites

no precedents that threats to management efficiency from public embarrassment or the

administrative work to correct a mistake outweigh the benefits of the public’s right to know a

matter of public concern.14 There are none.

Nor are there any precedents that the benefits from secret, absolute Agency control over

allocating its resources outweighs the public’s right to know it is flying on unprotected planes

14 The AJ cited Smith v. Department of Transportation, 106 MSPR 59, 78-79 (2007), as authority. In that case,

however, both the matter of public concern and the threat to management efficiency involved misconduct within the

workplace, not a national imminent threat to public health and safety. The public concern was racial discrimination,

and the employee’s security misconduct was connected with the alleged vendetta against a co-worker. On its face,

Smith is inapposite to the issues of national import alleged in this proceeding.


57

during a terrorist threat. That is not surprising, because the AJ’s balance sacrifices the

constitution’s rule of law to the rule of unrestrained authority. Critics since Lord Acton and

Justice Brandeis have challenged the premise that absolute power sustained through secrecy has

anything but a destructive impact.

First Amendment precedent consistently has favored the public’s right to know in

circumstances far less compelling. See., e.g., Rankin v. McPherson, 483 U.S. 378

(1987)(employee’s expressed hopes for President’s death were on a matter of public concern and

did not in fact impair government service); Gilbrook v. City of Westminister, 177 F.3d 839,867-

68 (9th Cir. 1999)(firefighter union members’ protests of a single unnecessary death was of

severe public concern that weighs heavily in favor of protection and requires correspondingly

more disruption, with potential disruption insufficient); Johnson v. Multnomah County, Oregon,

48 F.3d 420 (9th Cir. 1995)(public concern over waste, mismanagement and criminal misuse of

public funds outweighs office disruption); Roth v. Veteran's Admin., 856 F.2d 1401, 1408 (9th

Cir. 1988)(disclosures of misconduct threatening patient care at VA hospitals outweighed the

administrative disruption of correcting them: “Defendants cannot rely on disruption which they

instigated or exacerbated to outweigh Roth's first amendment rights.”)(citations omitted).

The AJ erred in finding that potential disruption of dangerously mismanaged resources

outweighed the public’s right to know FAMS’ secret plan to discontinue air marshal coverage for

targeted airplanes during a hijacking alert. The charges against Appellant violated the First

Amendment, and therefore 5 USC 2302(b)(12).

VI. THE AGENCY VIOLATED THE WHISTLEBLOWER PROTECTION ACT

When the AJ held that Appellant’s NBC Nightly News television appearance caused the

ICE/OPR investigation of Appellant, he also created a violation of the Whistleblower Protection


58

Act (“WPA”). The speech was protected under 5 USC 2302(b)(8) even more clearly than the

First Amendment. As confirmed by the House Judiciary Committee report, Special Counsel

order and subsequent corrective action, it qualified as a disclosure of gross mismanagement and

a substantial and specific disclosure to public health or safety, because management’s actions

made it virtually impossible for undercover agents to remain undercover. That undermined the

interest of every individual passenger and severely endangering the public. See D’Elia v.

Department of Treasury, 60 MSPR 226 (1993); Nafus v. Department of Army, 57 MSPR 386

(1993). In terms of sufficiency as a substantial and specific danger to public health or safety, the

record exceeds the requirements for timing, potential consequences and likelihood of harm in

Chambers v. Department of Interior, 602 F.3d 1370, 1375-76 (Fed. Cir. 2010). As with the

constitutional claim, the NBC Nightly News disclosure did not include any alleged violation of

internal Agency secrecy regulations.

The Board has authority to act on implications from the AJ’s conclusion. That an

argument must be raised on appeal for the Board to consider it is a general rule, but has

exceptions. The Board is free to adopt additional exceptions, particularly those that are already

well accepted by the federal appeals courts. The two currently accepted exceptions allowing

issues to be raised for the first time on appeal are those (1) where an AJ did not fairly put a party

on notice of issues to be determined, and (2) where new evidence or matters have arisen.

In Coleman v. Dep't of the Treasury, 88 M.S.P.R. 266, 268 (M.S.P.B. 2001), and

Fleming v. Dep't of Labor, 97 M.S.P.R. 341, 344 (M.S.P.B. 2004), the Board held that it

may consider issues raised for the first time on appeal where the actions of the AJ misled,

confused, or were otherwise unfair to the Appellant. In Fleming, id., the Board stated:

However, where, as here, the administrative judge did not provide the Appellant with sufficient notice that she must address an issue, or of the required burden of


59

proof, the Board will consider such newly-raised evidence and arguments on the basis that they were previously unavailable.

Similarly, in Anderson v. Va, 3 M.S.P.R. 71, 74 (M.S.P.B. 1980), the Board held:

An Appellant may raise an allegation of discrimination at any time during the Board's consideration of the appeal of the Agency’s action if the Appellant did not know of the existence of a basis for the allegation at the time the petition for appeal was filed.

See also, Graham v. DOJ, 50 M.S.P.R. 285, 287 (M.S.P.B. 1991) (previously un-raised

issue allowable if “based on new and material evidence not previously available despite

the party's due diligence.”

Within the federal appeals courts, the jurisprudence for allowing previously unraised

issues on appeal is considerably broader, and it does not appear that the Board has had sufficient

opportunity to consider such broader approaches. In Bird v. Glacier Elec. Coop., Inc., 255 F.3d

1136, 1148 (9th Cir. Mont. 2001), the Ninth Circuit conducted a review of all circuits, and found

the following: “The overwhelming weight of authority from other circuits supports reviewing for

plain error or fundamental error when an error is alleged for the first time on an appeal in a civil

case.” The court adopted the approach that such review should be allowed “where the integrity

or fundamental fairness of the proceedings in the trial court is called into serious question.”

Among the cases cited by the Ninth Circuit was Stewart v. Hall, 770 F.2d 1267, 1271 (4th Cir.

Va. 1985), where the court held:

While it is true that we ordinarily will not consider issues raised for the first time on appeal, we have recognized that in very limited circumstances we may consider such an issue if the error is "plain" and if our refusal to consider such would result in the denial of fundamental justice.

This approach is especially suited to situations where the issue is purely legal, the

relevant factual record is developed, and there is a risk that declining to reach the argument

would result in a miscarriage of justice. See, e.g., In re 604 Columbus Avenue Realty Trust, 968


60

F.2d 1332, 1343 (1st Cir. 1992) (setting forth criteria for reviewing issues not presented to the

court below), and United States v. Golon, 511 F.2d 298, 300-01 (1st Cir. 1975) ("salient factor"

in hearing issue not raised below was that the "strictly legal" issue was "presented on the face of

the statute").

Unless a statute prohibits such review of otherwise unpreserved issues, it is a

matter for each appellate body to determine its own exceptions to the general rule of non-

reviewability. As explained by the Supreme Court in Singleton v. Wulff, 428 U.S. 106,

121 (U.S. 1976):

It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below. In Hormel v. Helvering, 312 U.S. 552, 556 (1941), the Court explained that this is "essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues… [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence." *** [The]

matter of what questions may be taken up and resolved for the first time on appeal

is one left primarily to the discretion of the courts of appeals, to be exercised on

the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, see Turner v. City of Memphis, 369 U.S. 350 (1962), or where "injustice might otherwise result." Hormel v. Helvering, 312 U.S. 552, 556, 557.n8 (1941).

Here Appellant urges the Board to continue the development of its own jurisprudence to allow

issues to be raised for the first time on appeal where justice so requires. This is such a case.

REQUEST FOR THE BOARD TO RESTORE WHISTLEBLOWER

PROTECTION ACT SUPREMACY OVER AGENCY SECRECY

REGULATIONS. Appellant requests that the Board exercise its inherent authority to reopen the appeal for

reconsideration of last year’s ruling in MacLean v. Department of Homeland Security, 112

MSPR 4 (2009). 5 USC 7701(e)(1)(b), and 5 CFR 1201.118. In MacLean the Board held that

government agencies can override Whistleblower Protection Act (“WPA”) free speech rights


61

through internal secrecy rules such as the SSI restrictions at issue. The Board ruled that a broad

grant of statutory authority to issue Agency secrecy restrictions qualifies as a “specific

prohibition of law” that overrides public free speech rights in 5 USC 2302(b)(8). It rejected the

prior doctrine that “prohibited by law” is limited to statutory authority, not including an Agency

rule or regulation. Prior to this interlocutory appeal ruling, Appellant’s disclosure to Mr. Meeks

was eligible for legal protection under the WPA, notwithstanding Agency SSI restrictions.

The decision reversed 30 years of consistent interpretation that Agency rules cannot

supersede free speech rights in 5 USC 2302(b)(8), a first principle decisively affirmed in the

Board’s only previous consideration of the issue. Kent v. General Services Administration, 56

MSPR 536 (1993) Last year’s decision overturning Kent rendered the Whistleblower Protection

Act enforceable only to the extent that agencies choose not to overturn its rights through internal

regulations.

The Board faced a similar challenge with respect to due process in Crumpler v.

Department of Defense, 113 MSPB 94 (2009). In that instance, the Board held that extraordinary

circumstances justified it vacating the prior ruling and reopening the appeal. Appellant requests

that the Board take the same action in this proceeding.

The earlier decision’s reasoning cannot withstand scrutiny. Most fundamentally, it

skipped the concept of “specific” in the statutory language “unless specifically prohibited by

law”. 5 USC 2302(b)(8)(B) The canons of statutory construction do not permit erasing statutory

language or rendering terms superfluous. Boise Cascade Corporation v. Environmental

Protection Agency, 942F.2d 1427, 1432 (9th Cir. 1991)

The statutory basis to restrict SSI cannot withstand any scrutiny for specificity. The

statutory grant of authority is that the DHS may issue regulations banning release whenever the


62

Under Secretary “decides that disclosure of the information would … be detrimental to the

security of transportation.” 49 USC 114(s)(1)(C). This definition is too vague and overbroad to

withstand constitutional muster, let alone qualify as a specific statutory prohibition. See

American Foreign Service Association v. Garfinkel, 732 F. Supp. 13 (1990) (rejecting

constitutionality of “classifiable”).

The decision relies on inapposite, strained reasoning to hold that agencies rules and

regulations are “law” for purposes of eligibility to override statutory WPA rights. The decision’s

premise is that Chrysler Corporation v. Brown, 441 U.S. 281, 295-96 (1979), gave Agency rules

“the force of law.” MacLean, 112 MSPR, at 14-15. The context is entirely inapposite, however.

It is an entirely different context to apply the same definition for enforcement of government

regulatory authority, compared to the boundary for exercise of civil liberties. Other than the word

law, there is no public policy common ground.

The Board explained away inconsistent language in section 2302(b)(8) protecting

disclosures of “law, rule or regulation” as merely “redundant.” The Board did not have that

authority, however. "[W]hen Congress includes a specific term in one section of a statute but

omits it in another section of the same Act, it should not be implied where it is excluded. Ariz.

Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987); see also West Coast

Truck Lines, Inc. v. Arcata Community Recycling Ctr., 846 F.2d 1239, 1244 (9th Cir. 1988), cert.

denied, 488 U.S. 856 (1988).

Reasoning that Congress only said it once, the Board even rejected Congress’

unequivocal Conference Report instruction that “’prohibited by law’ refers to ‘statutory law and

court interpretations of those statutes … and not to Agency rules and regulations[.]” The Board

cited no authority for the proposition that a definitive conference report resolution does not


63

supersede all earlier, conflicting legislative history. Unequivocal conference report guidance is

binding. United Airlines, Inc. v. McMann, 434 U.S. 192, (1977); Brotherhood of Maintenance of

Way Emp. v. U.S., 366 U.S. 169, 175-6, 81 S.Ct. 913 (1961).

Appellant suggests the proper statutory interpretation for resolution of this issue is in

counsel’s prior amicus curiae brief, submitted before represented of Appellant. For the above

reasons, Appellant requests that the decision below be reversed. Appellant also requests that the

appeal be reopened to hold that Appellant’s termination for disclosure of SSI information

violated the Whistleblower Protection Act.

Respectfully submitted,

Thomas Devine

Legal Director

Government Accountability Project

1612 K Street, NW, Suite 1100

Washington, DC 20006

Telephone: 202-408-0034

Facsimile: 202-457-0059

Email: [email protected]

Larry Berger

General Counsel

Federal Law Enforcement Officers

Association

Mahon & Berger

350 Old Country Rd


64

Garden City, NY

Telephone: 516-671-2688

Facsimile: 516-671-1148


June 21, 2010

Of counsel: Thad Guyer


65

CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent as indicated this day to

each of the following:

e-Appeal Robert J. MacLean

Appellant

20 Waltham Road

Ladera Ranch, CA 92694

e-Appeal Thomas Devine

Legal Director




Telephone: 202-408-0034

Facsimile: 202-457-0059


e-Appeal Larry Berger

General Counsel

Federal Law Enforcement Officers Association

Mahon & Berger

350 Old Country Rd

Garden City, NY

Telephone: 516-671-2688

Facsimile: 516-671-1148


e-Appeal Eileen Dizon Calaguas, Esq.

Department of Homeland Security

Attorney-Advisor

TSA Office of Chief Counsel

450 Golden Gate Avenue

P.O. Box 36018

San Francisco, CA 94102


66

__________________________

Robert J. MacLean June 21, 2010

Appellant




WASHINGTON, DC

)


Appellant, ) SF-0752-06-0611-I-2

v. )

)



ADMINISTRATION )

Agency, )

) August 18, 2010

APPELLANT’S REPLY TO AUGUST 2, 2010 AGENCY RESPONSE TO

PETITION FOR REVIEW

The Agency’s response is non-responsive. Rather a defense of the Administrative

Judge’s (AJ) decision from the issues raised in this Petition for Review (PFR), with a few

exceptions the Agency chose merely to reiterate it.1 For the reasons below, the decision

below cannot be upheld.

I. APPELLANT MUST PREVAIL BASED ON UNDISPUTED ISSUES.

The Agency chose not to contest the following material facts and issues, which are

sufficient on their face for reversal of the AJ’s decision:

Factually, the context for Appellant’s disclosure was unprecedented emergency

preparation and briefings for a confirmed, imminent hijacker attack more ambitious than

1 The agency did make an aggressive effort to shrink the record on which its actions will be judged. It

asserted that Appellant’s references to deposition testimony should be stricken, because Appellant had not

sought to call the deponents as witnesses. In fact, Appellant proposed each relevant deponent as a witness,

but the Administrative Judge (AJ) denied them all except Mr. Donzanti in his October 8, 2009 (at 3) order.

Similarly, the Agency protested that the Administrative Judge had rejected deposition testimony as exhibits.

But he accepted them into the record as exhibits for impeachment, October 27, 2009 (at 2), the purpose for

which they were used.

Pleading Number : 2010018577 Submission date : 2010-08-18 17:45:38 Confirmation Number: 1701177041 page 4 of 22

2

the September 11, 2001 attacks (9/11) tragedy, involving the same type long distance

aircraft. Appellant and all Federal Air Marshals received these briefings stemming from a

Department of Homeland Security warning issued just three days before MSNBC posted

its July 29, 2003 article on its home page’s top story. (Exhibit 18) Abruptly and without

any explanation, all Transportation Security Administration (TSA) / Federal Air Marshal

Service (FAMS) Federal Air Marshals (FAMs) in the nation received unrestricted text

messages on their unsecure cell phones to cancel hotel reservations for overnight missions.

There were no markings creating any restrictions on release of the text message. More

specifically, there was no marking that it was Sensitive Security Information (SSI), as

required by agency regulations for that restriction on public disclosure. With the exception

of the deciding official, former TSA/FAMS Deputy Special Agent in Charge, Frank

Donzanti, all testimony from Appellant’s peers is that they also did not think the text

message was SSI. Even Mr. Donzanti, who testified that Appellant should have recognized

as common knowledge that the text message was SSI, admitted that under the

circumstances he would have been confused. At the time Appellant made his disclosure,

the law had been clear for 25 years as well that he had a legal right to disclose the

information under the Whistleblower Protection Act (WPA), agency restrictions

notwithstanding.

Appellant confirmed with agents around the country that they had received the

same order, and immediately sought a rational explanation from an on-duty supervisor and

every DHS representative who would talk with him, only learning that all overnight

missions would be canceled because headquarters was short on funds due to fiscal

mismanagement, and that was nothing those in the field could do.


3

Unconvinced, Appellant chose to try exercising his rights as a free citizen, and

contacted MSNBC reporter Brock Meeks to disclose the text message and its meaning. Mr.

Meeks’ story the next day, July 29, 2003, led to media confrontations with the President;

public attacks by six Senators and congressmen who criticized the decision as “shocking,”

“boneheaded,” “incredible,” “foolish,” “nonsensical,” “incredible” and a “sorry episode”;

sparking DHS to announce within 24 hours that the plan had been a “mistake.” Air

Marshal coverage was not interrupted, and Al Qaeda was unable to attack.

Appellant reacted to this mistake by helping organize and lead a Federal Law

Enforcement Officers Association (FLEOA) TSA/FAMS chapter against and actively

challenged policies and misconduct by TSA/FAMS Director Thomas Quinn that led to

exposure of undercover FAM agents. Appellant was a leading public critic of Agency

secrecy breaches. His disclosures were among those that led to the scathing May 25, 2006

House Judiciary Committee report, and intensifying controversy on national newscasts that

eventually led to extensive corrective action and Mr. Quinn’s departure. In the meantime,

however, he responded by labeling FLEOA leaders as “terrorists” and “insurgents” in a

“de facto labor organization,” and repeatedly sought investigations on what the agency’s

Immigration & Customs Enforcement (ICE) / Office of Professional Responsibility (OPR)

intake officer, Matthew L. Issman described as a “steady stream” of “frivolous charges”

that left him “incredulous.”

On September 9, 2004 Appellant appeared anonymously on NBC Nightly News to

attack the same security breakdowns confirmed by the House Judiciary report, but agency

officials were able to identify him. In response to this allegation and another February 11,

2005 complaint to the ICE administrator by Mr. Quinn for FLEOA activities, the Office of


4

Professional Responsibility (OPR) placed Appellant under investigation. During the

investigation, Appellant voluntarily informed the OPR agents of all his whistleblowing

disclosures, including those to Mr. Meeks. In June 2005, the OPR issued a report

confirming the disclosures.2

Appellant continued to work without any interruption or restriction on his air

security responsibilities until September 13, 2006, four months after Mr. Donzanti was

notified that the Appellant admitted to his 2003 Meeks disclosure, when the Agency

proposed his removal for criticizing the TSA/FAMS on NBC Nightly News and for

disclosing SSI. It subsequently withdrew the charges on NBC Nightly News. On April 10,

2006 the Agency sustained Appellant’s removal for disclosing SSI. He is the only FAM

who has been terminated for disclosing SSI. This is the case despite Appellant having a

spotless record on unauthorized disclosures before and after the Meeks interview, and

Agency leaders exposing arguably more sensitive information to the media. On August

31, 2006, four moths after firing Appellant for disclosing the July 2003 text message, the

Agency formally designated it as SSI.

Finally, the Agency does not contest the AJ’s findings that Appellant acted in good

faith to protect the country, that he succeeded, and that the only actual harm was the

administrative burden of correcting the mistake he exposed.

On this uncontested record, the Initial Decision must be reversed. The AJ ruled that

the September 9, 2004 NBC Nightly News interview was the catalyst for the investigation

that caused Appellant’s removal, a conclusion the Agency took the initiative to echo. That

2 The Agency contends this means Appellant’s termination was his own fault due to his “verbosity.”

However, the Agency cites no authority in civil service or any other law that being candid and forthright

about engaging in protected activity disqualifies an employee’s associated legal rights. Appellant volunteered

the information, because he had a good faith belief that he had acted lawfully.


5

is not surprising, since two of the Agency initial grounds for termination were based on

disclosures to NBC Nightly News and its cable partner, MSNBC. While the Agency chose

not to base its termination on those grounds, it is undisputed that they were the reason for

the investigation.

While the WPA is unavailable for the July 2003 Meeks disclosure due to its SSI

status, it also is undisputed that the NBC Nightly News disclosure and similar dissent as a

FLEOA leader satisfy WPA standards. While contesting the relevance of retaliatory

investigations under the First Amendment,3 the Agency concedes they can violate the

WPA, and does not contest the Board’s authority to consider this issue created by the AJ’s

findings.

In short, the Initial Decision established Appellant’s September 9, 2004 NBC

Nightly News disclosure as the proximate cause for his termination, and that disclosure

was protected. As a result, the termination cannot pass muster under the WPA.

II. APPELLANT CANNOT BE TERMINATED IF HE ACTED IN GOOD FAITH.

The Agency argues that intent is not required for its charge against Appellant,

inferring that a Ninth Circuit ruling, which introduced the criterion for resolution of the

litigation, also limited that issue’s relevance to a WPA defense that the Board cancelled

with its June 22, 2009 decision affirming the Agency’s interlocutory appeal. That is not

possible, because whether Appellant made a good faith mistake about the text message’s

3 The agency’s basis is that the fact pattern for the two Board precedents to date occurred in Whistleblower

Protection Act litigation. That is immaterial. In the 1994 amendments, when Congress clarified that

retaliatory investigations are one of many “threatened personnel actions,” there was no hint that jurisdiction

was limited just to section 2302(b)(8). Further, retaliatory investigations per se violate the First Amendment.

Mullins v. City of New York, --- F.Supp.2d. ---, 2009 WL 1616005 (2009)(retaliatory internal affairs

investigation of federal law enforcement officers for protected testimony in Fair Labor Standards Act

litigation); Denny v. Drug Enforcement Administration, 508 F.Supp.2d 815 (E.D. Cal. 2007 )(retaliatory

investigation of a physician for support of medical marijuana) See. V and VI., infra.


6

unrestricted status is not relevant for protected speech under the WPA. Whether a

disclosure is prohibited by law and ineligible for WPA protection under section 2302(b)(8)

is an objective standard. Good faith mistakes about protected speech status simply do not

matter. As the Ninth Circuit instructed, however, under the circumstances Appellant’s

good faith is the only stated criterion for whether his actions support the charges against

him.

The Agency relies on Hamilton v. U.S. Postal Service, 71 MSPR 546 (1996) as its

only authority that the charge against Appellant does not require intent. But Hamilton is

inapposite from the start. It concerned a failure to follow instructions about carrying

ministerial duties. Appellant was not charged with failure to follow instructions. His

offense involved no instructions or notice beyond arguable basic training he received while

attending the first FAM class to graduate after 9/11. His alleged misconduct was an

unauthorized disclosure, not failure to perform a task. The only common ground between

the cases is that an employee was fired.

III.APPELLANT’S TESTIMONY WAS CREDIBLE.

A. Appellant’s testimony was consistent.

The AJ rejected Appellant’s credibility on two relevant grounds related to

consistency: 1) Appellant told OPR investigators that he disclosed cancelation of FAMS

missions on flights from all airports under the purview of the TSA/FAMS Las Vegas field

office, but he testified otherwise that the cancelation was for all flights nationally. 2)

Appellant agrees that SSI inherently includes details which could expose agents on

individual flights, but disagrees that disclosing blanket cancelation of FAMS coverage is


7

SSI. The conclusion was that both positions are contradictory, and that they prove

Appellant is not credible.4

While operating from the premise that Appellant only disclosed cancelation of

FAM coverage flights from airports under the regional purview of the TSA/FAMS Las

Vegas field office, the Agency did not challenge Appellant’s numerous responses: 1) In

fact all flights were canceled nationally. 2) Upon initially receiving the text message,

Appellant immediately confirmed that the cancelation was national in conversations with

other Air Marshals across the country, his supervisor and the OIG. 3) He told Mr. Meeks

that all flights were canceled nationally, and that is what was in the media story. 4) It

would have been out of character for Appellant to deceive OPR on a fact of no significance

to him, at the same time the agency contends he invited his own termination by candidly

disclosing his whistleblowing. 5) Appellant also gave the OPR investigators documentary

evidence that the planned mission cancelation was national, rather than limited to airports

under the regional purview of the TSA/FAMS Las Vegas field office. 6) In fact, Appellant

did not tell OPR that the cancelation merely was for Las Vegas FAMs. The Appellant’s

written affidavit to OPR contains other errors on analogous details, and the interview

transcript demonstrates Appellant never made the national/Las Vegas distinction that OPR

reported and which the AJ states belies all of Appellant’s other testimony.5 6) The

difference between cancelation of flights for the Las Vegas region versus nationally is

immaterial for this action. The Las Vegas region handles hundreds of flights daily at

4 The Agency does not dispute that the Board can make its own credibility determinations without deference

to an AJ, except for findings about demeanor supported by references to the record. While the AJ offered

references for alleged contradictions, he did not supply any record citations for demeanor assessments. 5 The Agency objects to Appellant’s motion for admission of the transcript, because he had it in his

possession before the hearing. Appellant could not have anticipated, however, that an issue irrelevant to him

and not previously raised by the Agency would be the primary grounds to reject his credibility. In the

interest of justice and consistent with case law, the transcript that conclusively rebuts the AJ’s speculative

credibility attack should be permitted to resolve the surprise issue.


8

airports including Las Vegas McCarran International Airport, NV, Phoenix Sky Harbor

International Airport, AZ, Salt Lake City International Airport, UT, Reno International

Airport, NV, and Tucson International Airport, AZ.6 Appellant did not believe that

disclosure either of regional and national policies to eliminate coverage constituted SSI. He

belied that both threatened the nation during an enemy attack.

The Agency aggressively insists, however, that Appellant is untrustworthy because

he testified that revealing details of an individual flight is SSI, so disclosing information

about blanket cancelation of coverage includes every individual flight. Appellant has never

disputed that the whole is the sum of its parts. Again, however, the Agency enthusiastically

reiterated the AJ’s analogous reasoning, without recognizing the response: Appellant

believed that the sensitivity of details about particular flights was a different matter from

the consequences of a policy decision to cancel all coverage.

This is not a credibility issue based on contradictory testimony. While the AJ and

Agency can disagree, Appellant’s position was consistent without exception. Its genuine

nature was proven by his action blowing the whistle on what he believed were

management’s public disclosures of SSI, knowing that he was exposing himself to vitriolic

animus. It also was reasonable, reflecting the DHS chief Michael Cherthoff’s statements to

the press on the overall scope of FAM coverage, even limited in scope to particular British

airports.

B. The attacks on Appellant’s lack of remorse reinforce his good faith.

6 The agency objected to introduction of an organizational chart that demonstrated the Las Vegas region

includes Phoenix, in part on grounds that it was the “wrong” year. But the agency did not explain whether

that mattered, nor deny the point of the exhibit -- that the Las Vegas region handles a high volume of national

and international flights daily.


9

In contexts ranging from credibility to penalty factors, the Agency also

enthusiastically, repeatedly echoed the AJ’s finding that Appellant is not credible, because

he has not expressed remorse.7 The Agency did not dispute Appellant’s explanation,

however: he was not sorry, because he thought he was acting within the law to stop

illegality that gravely threatened the nation. The AJ found there is no reason to doubt the

good faith of Appellant’s motives. Whether Appellant was right or wrong, his lack of

remorse at worst could reflect a mistake, not a basis to reject his credibility or good faith.

The agency cites Ramirez v. Dep’t of Homeland Security, 2007 MSPB 4254, as

authority for its arguments on remorse, which it also makes to assess Douglas factors on

mitigation of penalty. The precedent is so inapposite that it illustrates why the Agency’s

attack is not relevant. In Ramirez the employee had harbored and impregnated an illegal

alien while working as a Border Patrol Agent. This was intentional misconduct engaging in

the same illegality the law enforcement officer was charged with catching. It directly

sabotaged the Agency’s mission. By contrast, Appellant engaged in good faith behavior to

carry out the Agency’s mission at a critical moment when the nation could be defenseless

due to a management “mistake.”

III. THE AGENCY DID NOT PROVIDE SUFFICIENT NOTICE FOR LIABILITY.

Other than the contrived assertion that Appellant’s testimony proves he should have

know better, the Agency does not dispute that anecdotal training did not cover its

7 Similarly, the Agency attempts to create another contradiction with his lack of remorse, because Appellant

testified that he feel remorse about the consequences for his family and the Agency’s credibility. Remorse

about consequences despite lack of remorse about the merits of painful choices are in no way contradictory,

and reaffirmed by American presidents on issues such as war and national security on a regular, bi-partisan

basis.


10

disagreement with Appellant’s general/specific SSI understanding. Nor does the Agency

dispute that the distinction was only formally resolved and available in an Interim Policy

that the Agency cannot demonstrate Appellant had received or was aware of prior to his

July 2003 Meeks disclosure. For decades the law has been clear that a government agency

must prove it properly provided notice of a rule to its employees, as a prerequisite to hold

them liable for violating it. Keefe v. Library of Congress, 777 F.2d 1573 (D.C. Cir. 1985)

The Agency cites Stearn v. Dep’t of Navy, 280 F.3d 1376 (Fed. Cir. 2002) as

authority that Appellant was responsible to know the un-communicated rules for which he

was fired. The reference again is inapposite. Stearns had nothing to do with the necessary

notice of alleged misconduct to permit associated liability. It was about government

employees being aware of the statute of limitations to apply for retirement benefits. The

Agency cites no authority that employees can be held liable without advance notice.

Appellant’s liability was as ex post facto as the SSI status of the information he was fired

for disclosing, which was not designated SSI until after his termination was over.

IV. APPELLANT’S TERMINATION FAILS THE DOUGLAS PENALTY FACTORS

While the Agency diligently recites deciding official Donzanti’s boilerplate

recitation of Douglas factor conclusions, it does not contest the case law requiring those

conclusions to be backed by credible, informed judgment. It is not enough to go through

the motions thoroughly. The Agency does not deny that Mr. Donzanti failed to do his

homework with respect to the relevant research referenced by Appellant, such as

consulting with subject matter experts and the Employee Relations Special Agent in

Charge (neither of whom supported termination); contacting others who supervised


11

Appellant; or even asking Appellant whether he thought his actions were illegal. Further,

Mr. Donzanti did not even go through all the required motions. He unequivocally testified

that he did not consider mitigating factors and that he did not compare Appellant’s conduct

with penalties for equivalent behavior in other regions.

The AJ erroneously failed to consider whether Mr. Donzanti’s testimony was

credible, although he was the sole Agency witness. Regardless of Mr. Donzanti’s personal

good faith, his own testimony was that his headquarters liaison for a decision he did not

write was the Policy Compliance Unit’s. That office had led the attack against Appellant

and other whistleblowers for TSA/FAMS Director Thomas Quinn, whose animus was

obsessive.

Further, Mr. Donzanti had a motive to cooperate, since he had been accused of

sexual harassment and subsequent quid pro quo arrangements for which there was no

accountability until Mr. Quinn’s departure. While he may not have chosen the harsh

penalty, he was in no position to challenge the death sentence selected by long-time friends

of Director Quinn in charge of the Policy Compliance Unit. In fact, Mr. Donzanti could not

remember changing a word of the document written for him to sign.

The AJ erroneously rejected Appellant’s motion to supplement the record with this

development, on grounds that the issue could have been covered at hearing. But Appellant

was not aware of the investigation and initial actions against Mr. Donzanti until 2010, after

the hearing. The Board is entitled to judicial notice that Mr. Donzanti was quietly demoted

months after removing Appellant, earlier this year placed on restricted duty during an

ongoing and active TSA Office of Inspection investigation, and recently served with orders

to be involuntarily transferred out of the TSA/FAMS Los Angeles field office.


12

Perhaps the most significant credibility factor is the contradiction between Mr.

Donzanti’s words and his actions. While asserting that he lost all confidence and trust in

Appellant, Mr. Donzani treated him like an employee with an unblemished record for the

four month interim period between the OPR notifying him of the Appellant’s July 2003

Meeks disclosure and proposed agency action, continuing to trust Appellant with

unrestricted security responsibilities. The Agency contends that the delayed reaction is

permissible. But both precedents cited by the Agency, Wilkes v. Veterans Administration, 6

MSPR 732 (1981) and Jiggets v. Dep’t Treasury, 48 MSPR 252 (1991), involved a delay

in opening an investigation to confirm misconduct and then making the charges, not a

delay confirming misconduct and proposing an adverse action. Mr. Donzanti’s deeds

fatally belied his hearing testimony.

In addition to attacking Appellant for not offering a mea culpa, the Agency

contends his offense was notorious because he endangered the country. The criterion must

receive a balanced review, however. Appellant corrected what the Agency characterizes as

a mistake. The mistake’s consequences could have been severe, depriving flights of any

security by Air Marshals during a hijacking attack more ambitious than 9/11. Relevant

Members of Congress angrily charged the mistake would have endangered the country far

worse than if it had remained secret, and uncorrected, thanking the unknown Appellant. A

cover up of this mistake would have been far more notorious. Indeed, the Agency did not

treat the Meeks disclosure as notorious at the time and was not even investigating it when

it targeted Appellant for his September 9, 2004 NBC Nightly News interview and FLEOA

leadership activity.


13

Perhaps most fatal for the Agency’s penalty selection was the disproportionate

punishment. Although other Air Marshals disclosed SSI information and were not acting to

prevent a potentially tragic national security threat, no other Air Marshal has been fired for

the an unauthorized SSI disclosure. The Agency explains that Mr. Donzanti was not aware

of the other disciplinary actions and penalties. That is because he did not check, and is no

excuse for disproportionate discipline.

The Agency properly cites Woebcke v. Dep’t of Homeland Security, 2010 WL

1889080, that the circumstances for offenses must be compared. But it then ignores

Appellant’s detailed analysis why the circumstances were worse in each other SSI case.

The Agency distinguishes the AR case based on that employee’s remorse, but the remorse

was for consequences to a victim falsely targeted for AR’s misconduct. (Exhibit F, at 19,

39, and 44) There were no victims for Appellant’s disclosure to whom he could apologize,

other than the Agency from embarrassment. In JS’s case, the Agency asserts that he

disclosed SSI (his identity as an Air Marshal), because another passenger had seen his gun.

That merely creates ancillary misconduct, for failing to conceal his weapon and then

compounding the error. Decisively, however, the Deciding Official rejected JS’s

explanation to that effect. (Exhibit MM at 9) In short, even if Appellant made a mistake,

there is no basis in the merit system to justify his termination.

V. APPELLANT’S FLEOA EXERCISE OF FREE SPEECH RIGHTS CAUSED

HIS TERMINATION.

The Agency does not dispute Appellant’s contention that free speech rights can be

protected in the context of outside activities. Rather, it reiterates the AJ’s finding that the

sole cause of the investigation against Appellant was the September 9, 2004 NBC Nightly


14

News program, so his whistleblowing and policy dissent on behalf of FLEOA was

irrelevant. This is a false distinction. Appellant was engaging in a FLEOA campaign to

challenge the air security breakdown at TSA/FAMS when he spoke on the new program.

Additionally, the Agency’s own actions demonstrate its assertion is false. In

February 11, 2005 Mr. Quinn openly called for an investigation of Appellant, due to

FLEOA activities and labeled him as “terrorist” and “insurgent” in public statements to the

Walls Street Journal in February 9, 2007. He referenced Appellant’s Nightly News

interview as misconduct associated with FLEOA. (Exhibit JJ; Exhibit 4) OPR formally

opened the investigation of Appellant in response to – 1) an allegation the previous year

directly about the NBC News interview; and 2) Mr. Quinn’s February 11, 2005 request. Its

assertion that there is no evidence of retaliation cannot withstand its own formal record.8

Finally, the Agency contends that Appellant’s SSI disclosure was an intervening

factor from his FLEOA advocacy. But the disclosure occurred before he helped found the

FLEOA TSA/FAMS chapter, and would not have been uncovered but for an investigation

of FLEOA and related FLEOA speech.

VI. THE EFFICIENCY OF THE SERVICE, AND APPELLANT’S EXERCISE

OF CONSTITUTIONAL RIGHTS MUST BE APPLIED CONSISTENT WITH THE

CODE OF ETHICS FOR GOVERNMENT SERVICE.

In assessing Appellant’s July 2003 Meeks disclosure, the Agency reply does not

mention the Code of Ethics. But the Code provides the proper criteria to assess net

efficiency in the merit system, and to balance First Amendment interests between

management, versus employee citizens and the public.

8 Curiously, the Agency contends that there is no accepted affirmative defense for union retaliation under 5

USC 2302(b)(9). That is because Appellant alleges discrimination for participation in an outside

organization, in violation of 5 USC 2302(b)(10), a defense fully considered by the AJ.


15

Beyond speculative risks and embarrassment, the Agency reiterates the AJ’s two

principal findings of harm by the Appellant: 1) His disclosure imposed administrative

burden to correct the mistake he exposed. 2) As an individual, he made a difference in how

the Agency used its resources. The first consequence is not material, since neither the AJ

nor Agency contends that the burden of correcting the mistake exceeded the burden that

would have been incurred from failing to.

The core issue is whether a federal employee has the right to make a difference.

Under the Code, Appellant had the duty to put loyalty to the country “above loyalty to

persons, party, or Government Department.” 5 CFR Part 2635. PL 96-303, 94 Stat. 855

(July 3, 1980). That is precisely what he did, and on balance he contributed to the

efficiency of the service by playing an undisputed role in preventing what could have been

a global terrorist disaster.

First Amendment case law is consistent with the Code’s priorities. The Agency

does not deny that constitutional precedent consistently favors protecting the public from

adverse consequences, despite agency disruption. Nor is the agency’s authority on valid

First Amendment restrictions on point. None of the cited precedents involved information

unrestricted on its fact whose disclosure played in significant role preventing a terrorist

attack. To the contrary, all concern disclosures that were classified or could undermine the

nation’s security. To illustrate, United States v. Koubriti, 307 F. Supp. 2d 891 (E.D. Mich.

2004) concerned disclosures that violated specific restrictions issued by a judge for a

terrorist prosecution. Compare with American Foreign Service Ass’n v. Garfinkel, 732 F.

Supp 13 (D.D.C. 1990)(imposing liability for unmarked information that could be

classified after the fact under vague criteria is unconstitutional)


16

There should be no doubt that First Amendment doctrine long has favored

constitution protection for disclosures such as Appellant’s. See, e.g., Melton v. City of

Oklahoma City, 879 F. 2d 706 (10th Cir. 1989)(the public benefit from truthful testimony

with confidential information that disclosed government misconduct in a police corruption

trial outweighed the disruptive impact); Hamer v. Brown, 831 F. 2d 1398 (8t Cir.

1987)(disruptive impact on agency from disclosures of misspending and related

misconduct does not outweigh benefit to public, when the dissent was not directed at an

immediate supervisor or co-worker); Porter v. Califano, 592 F. 2d 770, 773-4 (5th

Cir.

1979) (it would be “absurd” to let the disruption factor control the First Amendment by

outweighing the value of disclosures that significantly benefit the public)

The same high public policy stakes consistently reaffirmed in court also illustrate

why the Board should review the prior decision in this proceeding that eliminated the

WPA from relevance to the Meeks disclosures. Until that occurs, employees cannot expect

the WPA’s free speech rights to be enforceable against blanket agency restrictions on

disclosure, with no more statutory basis than generic authority to manage agency

information. The issue is not covered in any pending WPA legislation. While the Agency

properly cites the law of the case to bar Appellant’s rights on this issue, the Agency does

not dispute that the Board has sua sponte authority to reopen the issue. Appellant urges the

Board to exercise it.


August 18, 2010

Thomas Devine

Co-Counsel for the Appellant


17

CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent as indicated this day

to each of the following:

e-Appeal Robert J. MacLean

Appellant

20 Waltham Road

Ladera Ranch, CA 92694

e-Appeal Thomas Devine

Legal Director




Telephone: 202-408-0034

Facsimile: 202-457-0059


e-Appeal Larry Berger

General Counsel

Federal Law Enforcement Officers Association

Mahon & Berger

350 Old Country Rd

Garden City, NY

Telephone: 516-671-2688

Facsimile: 516-671-1148


e-Appeal Eileen Dizon Calaguas, Esq.

Department of Homeland Security

Attorney-Advisor

TSA Office of Chief Counsel

450 Golden Gate Avenue

P.O. Box 36018

San Francisco, CA 94102



Certificate Of Service

e-Appeal has handled service of the assembled pleading to MSPB and the followingParties.

Name & Address Documents Method of ServiceMSPB: Office of the Clerk of theBoard

Appellant's reply to8/2/2010 Agencyresponse to PFR

e-Appeal / e-Mail

Eileen Dizon Calaguas, Esq.Agency Representative


e-Appeal / e-Mail

I agree to send a printed copy of the electronic pleading with attachments to non-efilersby the end of next business day, as follows:

Name & Address Documents Method of ServiceThomas Devine, Esq.Appellant Representative

Government AccountabilityProject 1612 K Street, NW, Suite1100Washington, DC 20006USA


Fax

Larry A. Berger, Esq.Appellant Representative

Mahon and Berger 21 Glen Street,Suite DGlen Cove, NY 11542


Fax


ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY Docket # SF-0752-06-0611-I-2

Appellant's reply to 8/2/2010 Agency response to PFR Summary Page

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

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

Pleading Title : Appellant's reply to 8/2/2010 Agency response to PFR

Filer's Name : Robert J. MacLean

Filer's Pleading Role : Appellant

Details about the supporting documentation

N/A



Table of Contents

ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY Docket # SF-0752-06-0611-I-2

Appellant's reply to 8/2/2010 Agency response to PFR 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?

Yes

3. Do you declare, under penalty of perjury, that the facts stated in this pleading are true and correct?

Yes


SEP-27-2005 TUE 11:49 AM MAHON BERGERFAX NO. 518 873 1937 P. 01

Department of Homeland SecurityImmigration & Customs EnforcementOffice of Professional Responsibility

Office of Professional Respo~sibilityReport of In,vestigation

MACLEAN, RobertFederal Air Marshal·

Los Angeles, CA200405873

WARNINGOPR SENSITIVE DOCUMENT

HAND CARRY OR REGISTERED MAIL ONLYSTORE IN SAFE OR LOCKED CONTAINER

THIS DOCUMENT CONTAINS INFORMArlON REGARDING CURRENT AND ON-GOING ACTIVITIES OF ASENSITIVE NATURE. IT IS FOR THE ~XCLUSIVE USE OF OFl%ICIAL U.S. GOVERNM~NT AGENCIES ANDREMAINS THE PROPERTY OF THE OFFICE OF PROFESSIONAL ReSPONSIBILITY. IT CONTAINSNEITHER RECOMMENDATIONS NOR CONCI-USIONS OF THE OFFICE OF PROFESSIONALRESPONSIBILITY•

DISTRIBUTION OF THIS DOCUMENT HAS BEEN LIMITED AND FURTH~R DISSEMINATION ORREPRODUCTION ARE PROHIBITED WITHOUT PRIOR wRlnEN AUTHORIZAliON OF THE ORIGINATOR,

SEP-27-2005 rUE 11:49 AM MAHON BERGERFAX NO, 516 873 1937 P, 02

INVESTIGATIVE RECORD REVIEW

PLEASE READ AND SIGN BELOW

This file contains information from the Office of Internal Affairs, and is subject to the provisionsof the Privacy Act of 1974. It is the property of the Office of Internal Affairs and is loaned to youfor official purposes only.

This material must be safeguarded from unauthorized disclosure. It should not be leftunattended nor discussed with unauthorized persons. Those individuals who review thismaterial are required to complete the bottom portion of this form.

This file or any portion thereof may not be released to, reviewed by or reproduced by anyperson, other than someone acting in his or her official capacity who has a need to review thereport, Without the expressed written consent of the Office of Internal Affairs.

DATE

SUBJECTMACLEAN, Robert

NAME

REVIEWED BY

SIGNATURE

CASE NUMBER200405873

REFERRED TO

SEP-27-2005 rUE 11:49 AM MAHON BERGER FAX NO, 516 873 1937 P, 03

I A SEN SIT I V EDEPARTMENT OF HOMELAND SECURITY 1. TECS ACCESS CODE. 3

ICE2. P]l.GE, 1

R E P o R T o l' I N V E S T I G ]I. T I o N3. FIt.E ID, 200405873

4. TITLE, MACt.E]I.liI, ROBERT /TRAN!NON-CRIMINAt. MISCON /DISTRICT 0 DC

5. FILE STATUS' CLOSING RPT

6. REPORT DATEl 7. ASSIGN DATE 8. CLASS 9. FILE DESC CODES 10. RPT NER.06162005 09162004 2 1NO 003

11- RELATED FILE IDS,

12. ONDVL LEADS TO.

13. TYPE OF REPORT,INVESTIGATIVE FINDINGS

TOPIC, UNAUTHORIZED MEDIA APPEARANCE - SUBSTANTIATED

14. SYNOPSIS'On September 17, 2004, the U.S. Immigration and Customs Enforcement,Offioe of Professional Responsibility, Joint Intake Center, Washington,DC, received a Conduot Incident Report from the Department of HomelandSecurity, Immigration _ Cue toms Enforcement, Federal Air Marshal Service.The report alleges that Federal Air Marshal Robert J. MACLElAN, LosAngeles, made an unauthorized media appearanoe on the NBC Nightly Newstelevision program.

An additional allegation of unauthorized release of information to themedia was also uncovered during the course of the investigation.

15. DISTRIBUTION'CR

16. ORIGINATOR'(TITLE)

17. APPROVED BY, _ _.(~ITLEl S~IM INVST~

18. ORIGIN OFFICE, CH 19. PHONE, 847 981 3400CHICAGO

20. TYPIST, RUZEVICH

I A SEN SIT I V ETHIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS THEl PROPERTY 01' THDElPARTMENT OF HOMELAND SElCURITY, ICEl. ANY FURTHER RElQUElST FOR DISCLOSURE OFTHIS DOCUMENT OR INFORMATION CONTAINED HElREIN SHOULD BE REFERRED TO ICE HEADQUTERS TOGETHER WITH A COpy OF THE DOCUMENT.


I A SEN SIT I V E

DEPARTMENT OF HOMELAND SECURITYICE

1. PAGE' 2

2. FILE ID, 200405873REP 0 R T 0 FIN V EST I GAT ION

CON TIN U A T ION 3. REPORT NUMBER: 003

BACKGROUND;

On September 17, 2004, the U.S. Immigration and C~stoms Enforcement(ICE), Office of professional Responsibility (OPR) , Joint Intake Center(JIC) , Washington, DC, received a Cond~ct Incident Report (CIR) from the

DHS ICE Federal Air Marshal Service (FAMS). The report alleges thatFederal Air Marshal (FAM) Robert J. MACLE~, Los Angeles, California,made an unauthori~ed media appearance on the NBC Nightly News televisionprogr~ (E~hibit 1). An additional allegation of unauthorized release ofinformation to the media was also uncovered during the course of theinvestigation.

ALLEGATION ONE:SUBSTANTIATED

ALLEGATION '!'WO,SUBSTANTIATED

Unauthorized Media ~pearance.

Unauthorized Release of Information to the Media.

DETAILS OF INVESTIGATION;

ALLEGATION ONE, Unauthorized Media Appearance

_n Ma 04, 2005, OPR/Chicago Senior Special A ent

and Resident Agent in Charge (RAC)1nterv ew of FAM MACLEAN. prior to conducting t e 1nterv1ew, FAM MACLEANwas prOVided with the following documents for his review and signature,

1. Administrative Interview Notice of Rights and Obligations (FAMS FormOMS F 2130 July 04).

2. Disclosure warning for Non-Bargaining Unit Employees (Appendi~ CJ.

During the interview FAM MACLEAN admitted to appearing on tbe NBC NightlyNews television broadcast on September 9, 2004, as the subject shownwearing a hood and identified only as PAM "Mike." FAM MACLEAN admittedthat be did not obtain authorization from FAM management prior to makingthe aforementioned media appearance. FAM MACLEAN denied knowinglyreleasing, in any form, sensitive, secure, Or classified information toany unauthorized persons groups, or associations. Following theinterview, FAM MACLE~ provided OPR/Chicago with an affidavit dated May4, 2005 (E~hihit 2).

ALLEGATION TWO, Unauthorized Release of Information to the Media.

I A SEN SIT I V ETHIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS THE PROPERTY OF THDEPARTMENT OF HOMELAND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OFTHIS DOCUMENT OR INFORMATION CONTAINED HEREIN SHOULD BE REFERRED TO ICE HEADQUTERS TOGETHER WITH A COpy OF THE POCUMENT.


I A SEN S I T I V E

DEPARTMENT OF HOMELAND SECUR:tTY 1. PAGE, 3ICE

2. FILE ID. 200405873REP o R T o li' :t N V E S T :t G .l\. T :t 0 N

C ON T :t N U A T ION 3. REPORT NUMBER' 003

On May 04, 2005, SSA and RAC conducted an inte~view ofFAM MACLEAN. Prio~ to con ucting the 1n erV1ew, FAM MACLEAN was providedwith the following documents for his signature and/or review:

1. Administrative Interview Notice of Rights and Obligations (FAMS FormOMS F 2130 July 04).

2. Disclosure Warning fo~ Non-Bargaining Unit Employees (Appendix C).

During the interview PAM MACLEAN admitted that he spoke to MSNSC reporterBrock Meeks regarding three newspaper stories authored by Meeks. FAMMACLEAN admitted to providing Meeks copies of FAMS Las Vegas Field Officee-mails that mandated FAMS from that office compose one SurveillanceDetection Report per month. FAM MACLEAN denied knowingly releasing, inany form, sensitive, secure, or classified information to anyunauthorized persons, groups or associations. Following the interview,FAM MACLEAN provided OPR/Chicago with an affidavit dated May 4, 2005(Exhibit:1) .

On May 4, 2005, FAM MACLEAN provided OPR/Chicago with copies of the belowlieted items,

1. "Air Marshal pUlled from key flights," by Brock Meeks, MSNSC, July 29,2003 (Exhibit 3).

2. "TSA in 'witch hunt' Air Marshals Say'," by Brock Meeks, MSNDe, AUgust11, 2003 (Exhibit 4) .

3. "Air Marshals struggle with 'growing pains', by Brock Meeks,MSNDC, August 4, 2004 (Exhibit 5).

4. "Flip-Flopon Air Marshal Schedules," by Brock Meeks, MSNBC, July30, 2004 (Exhibit 6).

5. Six (6) li'AMS Las Vegas Field Office inter-office e-mails datedfrom July 7, 2003 thru August 4, 2003 (Exhibit 7).

PROSECUTOR:tAL ACTION' N/A

PREVIOUS HISTORY/PAST ALLEGATION, None.

I A SEN $ :t T I V ET~:tS DOCUMENT, ~OANEP TO YOU gOR OgP:tCI~L USE ONLY, REMA:tNS THE pROPER~Y OF THPEPARTMENT OF HOMELAND SECURITY, ICE. ~ FURTHER REQUEST FOR DISCLOSURE OFTHIS DOCUMENT OR INFORMA~ION CON~AINED HEREIN SHOULP BE REFERREP TO ICE HEAOQUTERS TOGETHER WITH A COpy OF THE DOCUMENT.

SEP-27-2005 rUE 11:50 AM MAHON BERGERFAX NO. 516 873 1937 P, 06

I A SEN SIT I V E

DEPARTMENT OF HOMELAND SECURITYICE

1. PAGE, 4

2. FILE ID' 200405873REP 0 R T 0 FIN V EST I GAT ION

CAS E EX H I BIT S 3. REPORT NUMBER: 003

1. Copy of Federal Air Marshal Conduct Incident Report(CIRl .

2. Affidavit of DHS ICE FAMS Robert J. MACLEAN, datedMay 4, 2005.

3. Copy of MSNBC news story "Air Marshal. pulled from keyflights," by Brock Meeks, July 29, 2003.

4. Copy of MSNBC news story "TSA in witch hunt Air Marshalssay," by Brock Meeks, August 11, 2003.

5. copy of MSNBc news story "Air Marshals struggle withgrowing pains," by Brock Meeks, August 4, 2004.

6. "Flip-Flop on Air Marshal Schedul.es," by Brock Meeks,MSNBC, July 3D, 2004.

7. six (6) FAMS Las Vegas Field Office e-mails dated fromJuly 7, 2003 thru August 4, 2003.

I A SEN SIT I V ETHIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS THE PROPERTY OF THDEPARTMENT OF HOMELAND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OFTHIS DOCUMENT OR INFO~TION CONTAI~O HEREIN SHOU~O BE REFERRED TO ICE HEAOQUTERS TOGETHER WITH A COpy OF THE DOCUMENT.

SEP-27-2005 TUE 11:51 AM MAHON BERGER FAX NO. 516 873 1937 P. 07

SEP-27-2005 TUE 11:51 AM MAHON BERGER____ . __ FAX NO, 516 873 1937

P, 08

A verbatim recreation of the CIR is provided below.

-Begin-

I-as Vegas Field Qffiee (LASFO) based personnel believe Federal. Air Marshal (FAM)Robert 1. MacLeail. to be the hooded PAM "Mike" who appeared on NBC Nightly Ne<mon 9/9/04. The FAM complained ofFAMS policies, implying thal~ t,morists can easilyidentify and cut FAM's throats if dress code policies were not chnnged. If substantiated,his appearance would be in violation ofint=al directives.

SAC David R. Krlowlton was on annualleave the week of 9/6·911 0/04 and did not viewthe NBC broadcast. On Saturday 9/11/04, LASFO ATSAC John·Plunkett advised SACKnowlton that PAlM MacLean's former supervisor, ATSAC Michael Marzigliano, hadwatched NBC Nightly news on 9/9/04 and believed the voice of the hooded FAM to bethat of MacLean ~ased on his extensive contact with thc FAM.

ON 9/13/04, SAC KnowltoD requested FAM Headquarters forward a video copy ofthenews broadcast. luso on 9/13/04 a LASFO FAM 011 TDY assignment, MichaelKopanski, telephMically advised he viewed the broadcast and believed the hooded FAMto be MacLean, bflSed on voice recognition. SAC Knowlton was on emergency leave theafternoon of 9fl3~04 and 9/14/04 due to a death in the family. Tl~e video was received atthe LASFO on 9/15/04. .

On 9115104, ATSAC Marzigliano confumed what he had told A1'SAC Flunkett, stating toSAC Knowlton t4l1t, based on voice and mannerisms, he uneqUivocally believed thehooded FAM on NBC news to be MacLean, whom he had supervised. He also advisedthat subseq\lent t~ the broadCllSit, other FANS who served with MacLean came to him andopined it was MacLean. Also on 9115/04, LASFO Operations Officer, Muriel Blackburn,advised she had ,!iewed the video and opined it was MacLean. She further related thather staff had heart! from other LASFO FAMs who viewed the broadcast and complainedit was MacLean <in NJ3C news. She also advised her smfthad alLegedly been informedthat MacLean waj; llpset that his voice had not been disguised, prompting him to requestit not be further t~levised.

Finally, on 9/15/04, the video was shown to MacLean's current Eupervisor, ATSACCharles Maurer. ATSAC Maurer opined that the voice of "Mike" was probablyMacLean based qn his personal contact with him.

FAM MacLean Has been in TOY stanis to Los Angeles pending 111<': birth of a child,which occurred this week. He is currently on Family Medical L"ave. FAM MacLeanhas previously announced to this office that he is the "PAM vice presidellt" of the FederalLaw Enforcemertt Officers Association (FLEOA). He has not b"on interviewedconcerning this matter.

FAM MacLean has 110 previous erR's'-End-

SEP-27-2005 TUE 11:51 AM MAHON BERGER FAX NO, 516 873 1937 P, 10

DEPARTMENT OF HOMELAND SECURITYU.S. IMMIGRATION & CUSTOMS ENFORCEMENTOFFICE OF PROFESSIONAL RESPONSIBILITY

AFFIDAVITSTATE OF,COUNTY OF;

I, Robert J. MacLean, who after being duly sworn state thefollowing'

Q; Please staee your name, current position and post of duty?

A; Robert James Maclean, Federal Air Marshal, assigned Los AngelesField Office.

Q; How long have you been employed as a Federal Air Marshal with theDepartment of Homeland security?

Ac Over 3 ~ years.

Q; What employment have you held prior to becoming a FAM?

A; us Border Patrol Agent - assigned san Diego Sector.

Q, Have you ever been interviewed by any television news organization?

A; Yes.

Q: Have you ever been interviewed by the NBC Nightly News Televisionprogram?

A: Yes

Q: Did you appear on the NBC Nightly News television broadcast ofSeptember 9, 2004 as the subject shown wearing a hood and identifiedonly as PAM "MikeH ?

A: Yes

Q; Did you have prior permission from the Federal Air Marshalmanagement to appear on the aforementioned television newscast.

A: No

Q: Is that the only time you appeared on any television news program?

A: Yes

Q: What was the purpose of your appearing on the aforementionedtelevision news program?

A: After FAMS management ignored mine and other FAMs' conoernsregarding rAMS' checkpoint bypass procedures, aircraft boardingprocedures, dress / grooming codes, mandatory hotel policy and FAMSmanagements constant desire to d1vulse Sensitive Security Informat1onto news organizations such as CNN and NBC Nightly News. I reported

1


these problems to the Oakland DHS I otG office, but no Agents followed~

up on my complaint.

0, Who asked you to appear on the aforementioned television show?

A' Brock Meeks of MSNEe. I know him from 3 other stories I spoke tohim about. I handed copies of these 3 articles to the investigators.They are, Air Marshal pulled from key flights, srock Meeks, MSNSC,July 29, 2003; Air Marshals struggle with 'growing paine' by BrockMeeks, MSNSe, August 4, 2004; TsA in 'witCh hunt,' air marshals say byBrock Meeks, MSNSC, August 11, 2003.

NBC Producers Tom Costello and Mario Garcia from New York, NY conductedmy interview over a phone line.

I have never provided any documents of any nature to Meeks, Costelloand Garcia.

For the August 4, 2003 article, I read Meeks word for word the six July7, 2004 through August 4, 2003 e'mails (submitted to the investigators)that mandated Las vegas FAMs to compose 1 Surveillance Detection Report(SDR). This policy was a violation of the law, gross waste of funds,abuse of authority and overall gross mismanagement that endangerspublic health and safety. Mandating intelligence reports can misdirectvaluable resources and get many people hurt or killed. None of thesee-mails were labeled having "Security Sensitive Information."

For the July 29, 2003 article, I informed Brock Meeks thetall LasVegas FAMs were sent a text message to their Government issued mobilephones that all RON (Remain overnight) missions up to August 9 would becanceled. My supervisor told me that the Service ren out of funds forovertime, per diem, mileage and lodging.

It is FAM policy that Sensitive Security Information will not bebroadcasted via text messages to our Service' issued mobile phones.

0, Are .you aware Of any procedures/policies/directives regarding mediacontact?

A, Yes -·ADM 3700 (para 17) which prohihits contect with the media.

Q, Have you ever released, in any form, be it verbal, written, orotherwise, sensitive, secure, or classified information to anyunauthorized person or persons, group or groups, association orassociations?

A, No, not to my knowledge.

Q: ·If you were to seek permission for a media interview who would youcontact?

A' I assume it would be the FAMS oirector or the Public InformationOffice.

0' Who is your current supervisor?

A, Jim Murray (ATSAC)

2

SEP-27-2005 rUE 11:52 AM MAHON BERGER FAX NO, 516 873 1937 P, 12

Q: Have you ever had the following persons aot as your supervisor inany capacity (ATSAC Marzigliano, ATSAC Plunkett, ATSAC Charles Maurer)?

A, Yes, I worked under the supervision of ATSAC Marzigliano for approx.1 year, ATSAC Plunkett may have been Aoting ATSAC when ATSAC Maurer wason extended leave he (Plunkett) replaced him temporarily. ATSAC Maurersupervised me for approx. six months just prior to my transfer to theLA field Office.

Q: Who is LASfO Muriel Blackburn?

A: She is a civilian operations officer assigned to the Las Vegas fieldOffice. She did not supervise me in any capacity. I've known hersince mid November of 2001.

Q' Do you have anything else to add to your statement at this time?

A: Thomas D. Quinn, the Direotor of the Federal Air Marshal Service,and his executive staff are setting up commercial aviation forcatastrophic failure by violating the law, gross waste of funds, abuseof authority and overall gross mismanagement that endangers publichealth and safety. Their Checkpoint bypassing procedures, aircraftpreboarding procedures, mandatory hotel policy, dress and groomingcodes and their policy (If divulging Sensitive security Information tothe media.

Thomas D. Quinn's executive staff:

Robert f. Beyers, Deputy DirectorJohn Novak, Assistant DirectorGeorge Papantoniou, Assistant DirectorRaymond M. Dineen, Assistant DirectorColleen Callahan, Assistant DirectorMichael H. Weikert, Assistant DirectorDavid Adams·, SAC, Headquarters Public Information Office

Only the victims of the 9/11 attacks give me the strength and fortitudeto accomplish my missions despite of the constant anxiety of having tocounter a possible in-flight ambush made possible due to DirectorQuinn'S deadly policies and gross mismanagement.

Regrettably, the following personnel continue to ignore Oirector Quinnand his executive staff's gross mismanagement,

Michael Chertoff, DHS SecretaryRichard L. Skinner, Acting DHS Inspector GeneralRandy Beardsworth, Acting under Secretary for Border Transportation &

SecurityMichael J. Garcia, Assistant Secretary of ICE

These individuals must stop allowing Director Quinn and bis executivestaff to threaten national security and listen to the rational adviceof ONE of the only true advocates of commercial aviation security,Federal Air Marshal Frank Terreri.

3


D~e to the fact that my ohain of command, the DRS OIG and myCongressmen all ignored my complaints and would not follow them ~p withinvestigations, I have NO REGRETS or feel NO REMORSE for going to acredible and responsible media representative, Srock Meeks. BrockMeeks reporting these gross mismanagement issues has resulted inimmediate and positive change in deadly FAMS policies.

The contents of this statement are true and correct to the best of myknowledge and belief.

Statement consists of 4 pages.

by

this 4th day Of May 2005,

Senior spe . I AgentDepartment Homeland SeourityImmigration & Customs EnforcementOffice of Professional Responsibility

Resident Agent in ChargeDepartment of Homeland SecurityImmigration & Customs EnforcementOffice of Professional Responsibility

4


Appendix cDisclosure Warning for Non-Bargaining Unit Employees

FormDepartment of the TreasuryU.S. Customs Service

WARNING TO NOT DISCLOSE INVESTIGATIVE INFORMATION

You are being interviewed as part of a continuing, official investigation by the U.S. Customs Service Office of Internal Affairs. As this investigation is sensitive in nature, you areinstructed not to discuss the nature of this interview with any other person(s), except private legal counsel.

F.ailure to comply with this directive could sUbject you to disciplinary and/or criminalaction for interfering with or impeding an official investigation.

I.-:Ro~-:r\\\x\ eel!\- ' have read and understand the above warning.

~.- 51"1 2~,;e"

AppftrtdJ~ c Pay. 157 of 151

SEP-27-2DD5 rUE 11:53 AM MAHON BERGER FAX NO. 516 873 1937 P. 15

ADMINISTRATIVe INTERVIEW

NOTICE OF RIGHTS AND OBLIGATIONS

Before we ask you any questions you must understand your responsibilities as anemployee of the U.S, Department of Homeland Security, Federal AIr Marshal Service.

This is a purely administrative inquiry. The p rpose of this interview isstatement to questions concerning ..l.,!;..d::t:l~~~~ ~........J.JI...(.~~r:.i,;.U~~:LLn.li!.JQ.LJJu........as it relates to your official duties. ft~.

You .have a duty as an employee of the Federal Air Marshal Service to answerquestions concerning the performance of your official duties. Your failure toanswer questions posed to you, as they relate to your official duties. may causeyou to be subjected to disciplinary action, including possible removal. Furnishingfalse information may result in criminal prosecution.

Any information or evidence you fumish in response to questions put to you during thisinterview, or any information or evidence, which is gained through your answers, may beused against you in administrative proceedings.

I have read the above advisement and understand its contants.

\<0%" R "f b:1.P-. G lct€A.r:JPrint Name

PAM$ Fol"/'l'l OMS P 2130 JUly 04

SEP-27-2005 TUE 11:53 AM MAHON BERGER

\

,

I

FAX NO, 516 873 1937 P, 16


Air Marshals pulled from key llights

By 81'0.:;" N. Me.:b, MSNl3c

FAX NO, 516 873 1937 P, 17

Jy.!y 29, 2003, Dc:ipitl! rcncweQ warninS!I nbol.l{ possible ~itlil'lc f1ijild::ins:~, Ihe Transportation S~eurity Administration' hll-S alertedfcctel1l1 ait mSfSho,ls that 11$ of Pridl7o)llhey will nQ longer bi: t"Qvcring cross-cQunl'l')' or intcrnllilona~ Oithts, MSNBC.com has learned,The dCQi:iion to drop cQverase on nlstus that many C';'j)C:11$ (;Qn!lll:ler 10 be i1~ the highe't rilil.; of lInlLCk. tppartntly stems from,ll, pQ!ieydccisiol'i to rcwotk. ~hcdu.le, so ttUI~ air m,ll,t$nals don't MV!!!! to im::ut ~hc c;<pensl! of stayin" overnight in hoccls.

SEVERAl- A1R. maf!ihal~ cQntocled by MSNaC.com TUI!~<1ay contlrmcd Ihat they Wlm: a1't::r~ed vil70 lex! mClisascs on (heir tSA·i8sucdceil phQ:l1l!!l to ¢l'lc::-.k theit :Ich~dul.::l. fot chi'll\ge!l.

II All ovetnillhlli, litart.ing from AUgU:>f first thrQU~h the nlnlll, werl:: cancelcd:' ZIl\ nir Inllnlhol told MSN13C.c;ul'I\, "My r~llpervi:>()rJ toldme DI'e-mi,ghu fOf' ;!llllfiela ~mct:~J w~rt:' b.l;!j"S' Cllncll'lcd for an inde-finite OImt.II,mi of tlme-," ;aid !be ~if marlih.,l, who ~I.luted

anonymity. "ll1e lil.lpervisor:s sliid they only had lime to chltnl!~ sched\lleg through Ute ninlh,+'

C\lrrclit tlill:ht :::ch~Qu\e!i, which rul'lthrough rhl!; end orJuly, Thur~"lly, ore iitllying inti1ct, lIflolher air rnlln;:hal told MSNBC.com.

Federal air rniU'ilhals: arc armed under<:ovcr ascnts dcployctj on U.S, airline::: anc:t authorizea to ule delldly farce to thwart a terroristintidertt. PrlQrto Sept, II, 200t, Ihere weI'(: only /I, few dozen mar,ihafli who flew mllinly on inle:tniltiorl.ill niShtS. But aner (he Sept,11, 200 I, [<:qor an~c"li, Con~resl authorized a huge inerell!iC in air ma",hills. From it. puol of 250,000 applh::anu, a few thouliand •• thee:l:ac.t number is classified -- wert. hircc:t lind given lipe~ial advaneed anti·tel'TOris~ training.

S~vt:i~l miitShals laId MSNBC.cQm 'hi:t the program i$ sutretins budgl:l lToubleii and Ihllt the aSllmcy i,fi lOQking to mak;<: Cutli whereverit tan" Recc~Hy, enrollment in uPSradl/ld U'lliliing rOt air marshals. known u "PhMe n," WII.5 Sl.Ispencled.

Tb/!: TSI\ declined 10 cornmCl1i on the de~il.il bl:hind this wrek'lj BChE:dill.e cQw18e:'. "TllC agC'ncy ~nnol commenl 00 acta,l}; of f~den:ll

air matShalmi$$ioli Clpcr.nil,)ns:," 'aid arian Tl.lrmail , Ii. TSA .!ipokesman.l-lowevClr, "roSA rernllina ~mmitted 10 aViation :It:icurity andwilt fa:1Ge ail Illpprcpnatc ~r~p5' n~essary 10 t~:lpqnd ro ¢reaible lhreat inforrndtiQn." he sdld.

A~ (0 the tlllf:~tion Ihin budgl::fCl!'Y oonlifl'ffinl!; were:' at 'he raoe f,)(ih~ pullbac:b'. turrnlill ~aid rhllt .11 pragnlr11~ within th~ TSA are"subj~ct to em.going ~view,11 In addition, "TSA'li eUrTent tll;sk. is 10 bahmeo the need to meet (;hansirtg threats with the need to livewhhin the 0llency's bu.d~et." he SQid, "The federal ail' milrshll.l bu4set is under review to d<:tcnnil\e how bes~ 10 mect rhe~e twoobje'"tiv~!I_"

the mQve to pull ~ir mlltshab from Ilrt)' flight requirintf them to stay ovcmillht i~ particularl)' disturbing to :some becaUSe it eoincide:;witn a neW high~lcycl hijllclting th~at ls:nl.ed by the DopartrTient ofliomela~d Sacurit)l. That Wll.l'nins: meIn6 ill.Y$ that Ilat 14;a.st one ofthesc IlltQ.CKIi could bt:J executed P)' tltc end Qfthe sl.Immer,ri Iccorning 10 1\ ~~urcc fAmiitarwilh the document,

The OKS IflcmD alsQ WD.m~ that ft,CW il'ltelligence iMicl1Ccli that hijw;:k.lIIrs this time may !limply try to I::rash tbe planes rather than flythem. "HijllQ'kel'S may attempt to use common itemll Cllrried by travelers Iluch I\:l camerilli, modified liS weapons," And hijtt¢kers "maytTy 10 calm p~enS'enI" by m4il.:jng !hem bcJie'V~ they lin: onl)' bc.iD8 rJlken hOllf.ase anQ lInol on ~ $Uioide mi5.sion.1t

"AJ-Qalda planner'S have' primarily conside~d suicide hijackil1S5' ana bombins:!;! a" the mQ:ilt ptomisil1S mefhod tQ desrro)' aircrllft il1nisht a:; Wfllllls to :ltrike ground tft.rge,",," th~ memo lIa~, nAllack venueS ma)' include the United K.ingdom,ltal)', Austtalill or the Eil!ltCOllsl of (he United S(B.tcli dl,j~ to the ~lativcly high CQna:nh'ation Q(aovemmcnr. mUieuy and lII.;:anomie cArgt::U"," tho l11<:mo Wllm:i:.

The <:anceHil.ctol1 Qf Qvc:mia:h( !JtDys hu- ~cn floating BroUnd the air mRl'llhal fUIlli;l1' mill (or' weekN;, based on convc:r:;MionllMSNBC.com has bad with v~riO\lS SQu~cs In the air marshal proatam.

When the rCDlily bit, lj:cveral air IltlU1lhals VOiced their d.isbtliefthal tltc I::utbacks We1'C coming now. in thc wa~ Qfncwly is:l.uedwaming1l.

''The rll~t that Il;tili is coin<:icling with the new Ilirline Ih1'CAIS, i~jllSt blows our min,ds,1I an air l11at1hBI siaid. "We con'r cover [everynight] but IlC lc~t pUl us on Ihe: his:h-lhreilt plane;, 1M Ones I~"elinj Ul::fcliit the c.ountry,1t tho air mal'Shal said, l10tinjJ that th.: fourplanfl:l hijllcked on Sept. t I were aU :iehcdu\c;d cro~n~·cl)untry 1lill:hbland th.ere:foft. filloa to clI.pn(jlt)' with ovhltion fuel. Not having nirmarsb~1 coverage on those t>1'es offliabtll, "il'sjust pJilip SQAIjI," Ite wr marM~J snid.

T"~ lilt ma.nlhDJ pro$rM1 haa been beliel by II number ofprobJelJ1.5 during jts quick n1mp-up from II few agents to the-ulll:nds.MSN8C.com n:pDl'Ied in June that more thiJn 100 f«lend air mSOihals h~ been fjr~c:t or strippeQ o( Iheir "iSM sllItus for problems.slcmmin:s from illoOir $ecllr11)' clt::anllJ,"c background ill~ti8'ation;. 1/'1 additio'l, .!lome t1ir mat'li'nal5 ~1'Il: nying wjthotlt llaving 1'e:'(;lIIivedthCli1' final sc:t:urit)' elearanl;es, Tnmllportatiem S~\irit)' AdlninilitnlliQll 50UI'C.:S !laid.

SEP-27-2005 TUE 11:54 AM MAHON BERGER FAX NO, 516 873 1937

"P, 19

TSA in 'witch hunt,' air marshals sayHOffi':I.md Security dCl\ics KtIowlcdS~ o((ormllol in\'csda:a(iQf\by Br~k. N. Mcck.$, MSNBC, 11 Au&ust 2003

WASHINOTON. Au~. II ~- 'the TflI,nsponlllion Security Adrnil'iiJtrluion is conducting a "witth hunt" to ferret Qut and 4iacipllnecrnpljJyee~ in tilt:! federal air rn~hill program who ha e lItkcli to the media, sevcfUl sourceS wilhin the program lold MSNaC..;om.Some air rnarxhllob 4re e....en bcins threatened with nl lns the USA PalJ'iOI A&1. a law cnaeted 10 help light terrorism. \I:l:ed ngaili:Hthem. The Ocp~mcnt or Homclilohd SC(;urie)'. whieh Q"'CIiiI:e;~ the TSA.. dCl'iiea th/ll an)' sueh in\'csugation 14 talcin& place.

HOWEVER, A DS,PARTMEN1' Of l-lomcll\.nd Security IipQ~e!im,,1'idid lId:l'\Qwlcdge thllt il.l\ in\'cstigation i:s undct way s\ln'Qundlns;dIe cjrcumst<ln¢~$ involving II dl!cisioJl 10 pull J)jr mill'$n.:l!s from high risk Illgh/.S in an llnempt to .!iav~ mone~ lit tne cash s(r~pped

TSA. ~ ~Iory first reponed in lal.e J\.II)' on MSNBC.cOfTI.

OHS l.!i lnvestiaaiing ~whetncr Ot not I;en:nin Inll:fnal milongemeot deci$.ion~ regnrding federal ;:"jc fTllU';!:hall;i;h~duling werelllJthori"Zc!:d, ~ SOl-/d BOiU'l Roc:hrkilS'se, ol ~flaJ1m~i'lt spokesman, "and if ~O. wh() may hAve authorized ilJDSe,·

Sh()l'tly aner M'SNBC.c:om ~po["(ed 'hat "tSA was pUlling llir nlllrshalli" from nighcs, based On inf()('I"(Jalion provided by .!iDUrCtiS wWlll'Id'l~ nlr marshal PtQsrilm, an "mvestigllt!\le wit(;h hunt Will; staned," on.c air marshnl who teque~Hed anooym!l}' told MSNaC,com,

Tne ;\ir mar~hals war!€. D.!i un4erc:o....el" law enforcement ofllcers nbljlu'i! airline:;:: llli such, thl::)' arc ohl!fI gi ....1::1'I llCCCliii to cln.!iliiri~dmis.$ion infotmD.liOl\ and there(orr: are mudt to sign dOl;ul'l'leflt.!; p1edSIng t.f\e)' wlH not dlv\lige iliformatiofl to the mediil.

NO FORMAL PROBE

Rl;.c:hrkAS,e silid .hen: hall beel'l no rOli'i'la! in....esUgnl!ol'l aimeQ at uncovering persons within Ih~ air marshal PtQSJum tha~ Itligh.( ha"'l!leAked infcmnnUDI'I lo the. mcdill.

Howe....t'r, Rochtk./l..5Se di~ say DHS wwj)J inYesti~lItc llJ'Iy incidents" of tmplayc:es disclosin,g what they know (0 be classifiedinformation, ws....cry go....ernment timplo)le!li, in~luQin~ liol'l'leoQe in ~he fcde;r~lllir marsh.1I.1 lil:-rvic:e. is prohlbi~ed b)' law from relensingSC!n:sit.i'l'~ clas.liift¢d lnfoMlI:tiotl unll:s:! gi...en express pcnnlssitm 10 dO ~O, M he said, And If 8JI in ....l!;sligaJ.ioll found Ihsl that: cl.assifl~dinformaliol'l WILli dlvul~ed. outside the i.ge::nl::)'. it would bt a violation o(law and (he person or P'=rsCins Qli.ubjl!ct Ii;) arrcsllll\dproscet!(ion, M RQeltrkMse 1i41a. .

But some nir mal"lihals did ~ped: to MSNBC,l;OfTI >lbol.lt being pulled from high-fisk tlisnts bl::C1llJse ,1'1,,)' bell~vcd tlt'l( ./Ict alon4' hurtovernU security.

The move an the plU1 of air milltahnls tD come forward drew It noel from Seflll(e Demo<:tati wh.o blasted TSA for I;:onsidering the moveto pull lIlr mnn;,hal.$ ffOm :lome nights simpl)' because of bUdget woes,

HI WAnt ~o thAnk the air marsl1ll.ls who ta~ forward Imd told the ,,"Hit ll.bDl,lt what Willi goit\.g an within their agen(;)' and brinc:ing thisluue [nle tne lipoUight,~ saiel Set\., E1nrbara aox,cr, P-CaUf" Quril'llJ a news eenferl::l'ICIIl, ~bC(:ausc l believe IhM eutting air marshals WI.ISclearly in Ihe mix. of bUltCellU'y cut.!; beinl; COl'Isidered. H

FUp-nop Oil IIIlr manlhal schcd"'~5

Ofle Il.ir mll.riihll.ltold MSNBC.eom that his el'ltil'e fIeld office was siycn an Qral briefing aM told ~ihll.t iln investia:atian is under wa)'"And thaI l~ Qf"det ro help t1nd. propl!: ~sU:l~g to the medill, ~thc USA. P'.lIlnOt Act WllS BPifil to be uJiC.d" to pu.1I home phone and. Intertll:ltrecord.s. Several other air mD.l"$hals: MSNaC.(om heard from K'id simU", ,!ItQrll::.ii of an il'l~~tigll.tlon under way; one nddltional airmarsha:l alsa m~l1lioncd tMt: his t\ipervi;lo( had ml$ntiOlK!d Ul.: list Qf the: Patriot Act.

~lt Ml$1ie IIl1c,.ltuorrs 1It'e' nvc. they 5how mi&'plaq.:d Flori(~s+" saU:l Rep, Carolyn Mlllon~y, D-N. Y., ch4lr af Ihc ~mocl'~Ujc TASkFon:e on HornelJn4 Sceurity. '"They &hould.nl

( be going After c::ivil.1jervant5 dOlh8; lheir patriatic dyty; they .should bt:I goit\.1 aflcrwhoever made the bonehelWcd deci.sion IUlod whoev.:r approved It af fhc OMB. W

CAN'T lNVOJ<:E PATIUOT ACT

8)' law. however, the: TSA isn'l .1Iowed to lnvola: the Patriot Act. That law was devcloped to ,{VI! brol\der su.rveillnn;:e andpro*Q(orlal power to hlw enforcement acet\.eil;lj in order to beucr t=:ombat ~cn'Orillm.

'Thtc4tcninglo l.I.l1e ihe PalriCK Act wls not 11'1 a(:~ oflo.w, il's an act of Intimidadon,~lulld. Steven AJ'tr:;rgOCld, wno tUn, the' Projct,l:t onOO1lemlJlent S«m.")' for the Fed.(.r:J,tion or American SeientiJts, -The politics o( this are the IIgenC')' i::t trying lo regulate what kifld ofinteri'lCuQn iu. employees have with Ute IMdia ..nd the &t;nc:ra1 public: At'tcrgood said. w'That is som.ethin~ 'fiat rJiu:s qQesliot\.lI ofagency &Cod faith. ~

And from he~ the next $~r illi "for Congrelili to invtStlg~1.e the behnviar of the agenc)' bcCal.lllc the)' arc liklnin~, irth4sy navel'l't crosscdthe bOlJndlJ}', ofbll4 f.lLith,. Af!er.O()d ~ll.ld,

Th.llf'a exAC!ly lhe lhinltin, of Rep, M.II.loney; 3he $el'lt.letl~J'S tQ the chll.im:len of tbe liolJ~ and S~JUite JUdlcjary ~ommitt" Ol-nd thet=:haltTnllfl ind nanking member of the HOUle: Seh:.ct C()tl'ImiUec:: on HOfTIeland. SCC;l.Irit)' u.rgil'lg further action,

~lToJ invoke. or ihrcatcn 10 invoke, tbe USA Pntrio~ A,c.;l, II. law meant to b~UI~ tertOrlam.1o tar~ct pamotj;: employees 5e~mli to be notOfIly iIlagical, bul. mi.£l,I:$(: af the IlIw ;u we'll. ~ Maltl'l1ey ~IIY& In hqr lelrer the JUd:ciaz-y committee leaden. ~l urle your 'ommiuc~ 10formll.l1y invcstiglltc the illieaed misuse or the USA PilU'iOt Act b)' OHS for It.s internal probe of emplo)'ees.'

In the leU(;r to the HOUR Homelllhd. Security Committec, Malofle)' as"', that t.f\ere be an h,vestISD.tion to fInd out whether DHS 1.$p~fliuin, II.n in\"~uCllci(Jn lnro lew .£temmltlC (rom tho,(e 111 UJe Fcd~r.1 Air Manhl:l prognlnt (a determinc if "rc.rol.lteeS ace ~ltlgmilidircet4el.-

Copyl'ignl <:I :rom MSN8C


*-,I


Air marshals struggle with 'growing pains'"utonomy of fjeld offices creale, bumpy ride for ronk-.nd-fileFederal air marshals are shown here perfonning tactical tra.ining inside a retired airliner. On the job. theymust adhere to a dress code tfla.t some SI\Y makes them easily identifiable.

By Brock N. Meek'Chief Washington correspondentMSNBCAug. 4, 2004

WASHINGTON - Nearly three years after the government', dramatic resurrection of the morihund FederalAir Marshal Service in the aftermath of9111, the agency is hitting turhulence as it 'truggle' with what oneagency official called "growing pains."

A recent incident, as well as a new ad hoc policy directive, indicates that the ride could he getting bumpierfor the high.profile agency before it gets bener:

The incident involved two federal air manhals from the Cleveland office who were recentlystopped from boarding the plane they were assigned to ptotect because of a dispute with an air marshalsu~ervi,ot regarding tbe agency's dress code standards, MSNBC.com has loamed. The plane then took offwithout any air marshals aboard.

The policy directive, Which applies to air marShals only in certain parts of the oountry,requires the submittal of least one ",urveillance detection report" (SDR) per month, MSNBC.com hasIoamed. These reports are used by rank-and-file air marshals to detail and track suspicious activity and arethen analyzed by intelligence experts looking for possible terrorist trends. A directive mandating thesubmission of these reports crea.tes a Uticket quota" mentality, one air marshal ,supervisor toldMSNBC.enm. Worse, such a mandate encourages filing bOgus intelligence reports. "I hael nothing to report,'0 \ filed a false repnrt," an air marshal told MSNBC.eom when questioned about the elfect of the policy.

Two federQ' air marshals were ~topped from boarding the plune th(,"y wel"~ Assigned to pl&U'tect·because of a dispute with a superVisor regarding the agency's dress code- standards.

Both of these instance' reflect the wide latitude $upervi,ors of the agency's 2\ field o!'fices arc given wheninterpreting and implementing ageney policy. The situations suggest thatageney polieies can vary greatlyfrom one field office to another, puning rank·and-tile air marshals at odds with ,upervisors.

The dress code issue is perhaps the most visible example of the disconnect between management andworking air marshals.

Air marshals have been upset with the agency's dress code since it WaS officiallY instituted early in theagency's life, Rank-and·file marshals claim the "suit and tie" dress code makes them too conspicuous to .'other passengers and by extension, any ~rrorisr,; who might be lurking. '

Frank Terreri, president of the air marshal ehapter of the Federal Law Enforcement Officers Association,called the dress code "deadly" in a lener last year to ageney director Thomas Quinn and has lobbied him tomodify it.

During a recent congressional hearing, Homeland Security Secretary Tom Ridge, when questioned onwhether the dress code put marshal' at risk. $Oid the standards would be reviewed and changed ifnoeded.

The agency declined to provide the exaet language of its official dress code, eiting operational securityconcerns. However, "thore is flexibility [in the dress eode) depending on what mission the [air marshal) isgoing to tty," said Dave Adams, a spokesman for the Air Marshal Service..

Adams deolined? however, to comment specifically on the Cleveland dress cod.e incident saying, "We donot discuss intemal issues involving our personnel." However, Adams did say that the service uadheres toprofessional standards to instill confidence and respect to both passengers and crew, especially if an


emergency arises at 30 1000 feet."

FAX NO, 516 673 1937 P. 22

The field office supervisorS I "because of their vast experience as being senior managers within different(federal law enforcement] departments prior to Goining the air marshal service], do have some flexibility intheir inrernal procedures or running their officest" Adams said.

Rogue poncy?Tbe relative autonomy given 10 tbe field offieos may bave allowed .ome air marshal officials 10 oversteptbeir authority by insrituting an unauthori.ed intelligence reporting .quota, MSNBC.com has leamed.

"Beginning in luly 2004, each FAM (federal air marshal] must prepare one SOR (surveillance detectionreport] per month," says an internal air marshal service e·mail obtained by MSNBC.com. "The Object ofthis instroction is to make you more alert to your surroundings not to generate bogus reports. However,this is part ofyour perfonnance appraisal and you must prepare one a month," the e-mail says.';There may come nn occasion when you just donJt 5e" anything {Jut of the ordinary for a month at ft

time, but J'm sure if you are Jooking for it1 you'll see something: - Internal eymail F~deral AirMarshal Service

Another internal e-mail obrained by MSNBC.eom addressing the same issue says: "There may come anoccasion when youjwt don't see anything out of the ordinary for a month at a time, but I'm sure if you areIODking for it, you III se~ som.ething. n

Part ofthe air marshals' job is ro file SORJI"any time they see anything of a suspicious nature," Adamssaid. "Obviously the federal air marshals are out there everyday in the aviation domain and who better thanthem to know what's out ofthe norm?" noted Adams. .

When asked about tho mandatory SOR filing policy noted in the intemal e"mails, Adam. said "there is nomandatory requirement that [air marshals] mu.t send in an SOR once a month for any appraisal purposes,"adding, "we want pertinent, valuable information sent in."

GroWing roomAny disparity in policy among the various field offices should be chalked up to an agency that "is kind oflike newly poured concrete," said one Held office supervisor. ''There just hasn,tt been enough time for theconcrete to harden up..'

This .upervisor, who like others in this .tOry spoke on the condition ofanonymity. said tho air marshalservice is "still going through growing pains.... It's a matler ofgetting the agency built out," h. said. "Ithink it'$ gaing to be the best place to work in federal law enforCement in a couple of years, to tell you thetruth. And it will ju.t take time for all these problems to .ort out."

One of these long·standing problem. within the agency hss been a conspicuo.us lack ofpromotion of rankand-file air marshals inro .upervisory positioll$. Until now.

"Applications are being vetted right now. and we anticipate, hopefully within the next 60 daya, to announcesome [promotions to].uperv!sory posidoO$ drawn from within the rank-and-file FAMs," Adams said.

Air marshals also are slowly expanding their roles in other areas of law enforcement, such .s beingassigned 10 work with various loinr Terrorism Task Forces, in which they work with orher members offederal law enforcemenr on reITorism-related oases. In addition. the entire agency transferred from beingunder the control of rhe Tran.portation Security Agency into Immigrations and Customs Enforcement latelast year.

"lCE offers the air marshal service multiple investigative resources, such M additional access tointelligence, better coordination with other law enforcement agencies, l:\.nd broader training opportunities,"said Michael Garcia, assistant secretary for the bureau, at the time of the move.C> 200J MSNBC IfTteraclive

.'

SEP-27-2005 rUE 11:56 AM MAHON BERGER FAX NO. 516 873 1937 P. 23


Flip-flop on air marshal schedulesAle mllrshtb will (ontlnU~ to nt OR InrernaUonf4l. t:rou~U.S, trtp.ll

FAX NO, 516 873 1937 P, 24

July 30 •• Af\t!if' MSN'BC,com reported lh~ !\Cw policy, Ihe Trll.n.spD~tion Security AdministriUion said it would lmmediiitcly be~in

!Ictu:du.ling air mllr:ohah: bal:k on ctos:i-eauntry and international nights. NBC'j; 'Pete Williams reports,

By Bi'OC~ N. Meolc$, MSNBC

WASHrNOTON, July 30~ In an IIppitent rcvcl'$al Dfpolley, UIC 'l"rili'lSpQlUtion Seeurity Administrlilolion will immp;diatc!y' bagin:K:hcd\ilins: Ilif mllr$hlll!l baek OR crO$:!-Q(}untry and international Oi&hl.!l, MSNBC.com hall learned. ihe move Ciomcs IC$li thlln 24 hQursafter MSNac.l:om repOrfl:d that air marshals lNefe beirlll pulled rrQm toasc t1iShl!i bccau.se ofbud&:c~ problems associated with thllcostli of oyel'D.ighllod~in&for ttJe marshals,

THE OEPARTMENT of Homeland S~curi(y on Wednesday bla.med tha confusion Qn II mixup in t;ofl\munlclI.tion and said ttJedepartment bad bl!;(!;n worKina: with .air marshal officio-Is Qn Monda>, to cOrTeel ttJe situation.

IIAmcriell should KnOW (bat $...ery IiI" marsballhal we bave i.s being deplayed, and additional l"(:$o1.lrl::t:1. arc being directed ta thaiVf!.r'/ critical mission:' HQmelllDd Security Secretary Tom ltidge said Wtdnes4aY in a spl!'l:lch. Part Qftbe plan to add resoun::eSiI'lCiludeli'lI.!'tcali of 100 air l'Rarsha\!i: now doias: othcr jobs with TSAtlL lip,okesrrum for the said.

Wlliih,PO~I: New hijat:\( WlIl'l\ingsTtJe droppinG of~l'$nals from tJjghlZ Ihllt mim)l ~pms w~ider to be:,I!.i the hiShest risk ofatl"ack t:amtI to lighi Tuesday whense...eral air marsbills CiQf\taeted by MSNBC.com confirmed that tbey wen: alerltd vill it l'text messll.&a'~ Qn tbelr TSA.-issued cell pbonesu> .\:hCClk theJr :ichodulcs tot' changc$.

The marshliLll found Ibat, tu::a:innlns Fridll.y, I:h.ey blad. not beerl lIICiheduled for any flights tbJt would require them to stlty awaytram ham~ o~mjB"ht. That m....snt'aa sir mlutna:} cover'tt£e On in~rnatlonll' 01' CI'O'$.!I-cowUry mghts", rile ...ery kind targcr.ed in thc S.ept.II, '200 I, ten'orist auaeks.

Oem!! renew call' rur ,s/,lcllrily rundingthe- tnQw to pull mlll'!"hals from dlos!! lHghu WB..$' parl/(;ullU'ly d.l:oturbitllf to ~me: b~W"C' it c::oiac:ided WW:l II neW niih-Ie".'

tJijat::kins: threat i~UI!Id by the Departmant of Hom$lllnd Sceurily. that IN/lming memo said tbat "at lc~t OM of thesCi 3naclcs covlcl beeoxC'("ut~ by rhe end of rhe stlmmcr,," aecofdlR& to a sOUr«!: familillr' with the document.

T/leo rSA., whicb hotul!.!I ttJ,e oj,it' mlltshal program, has Ql::eon l.Ind~r Iiev~ bu4geotary ~onstraincs. fors::ing cutbaek4" in sC'yeralllreas,in<:ludina: Illying otTof federil.t ai~on KreeMrs and the recently announced sU$penslon Qf ad...irICied Ptwsa n lraining for its agc;nts,$Ourc~ cold MSNBC.eom. ihc': move to cut out tulfhts requiring sir mA(fhllls to sUy ovcrnight :ltemmed trom those ;ame budgc:tproblc:ms, MSNBC.c::om wDS told by IU'I ag(:ncy source,

Sen, Charl~:I" Scoumel', D~N.Y .• (.lined th~ cqll"nans.ensical" In ~ I(:tf.er Weanet$y to SC':~re(lU)' Ridge'. Schumer's lctt~r UfS-eosOHS tD "immediately l'eVI!r'!iC rq)or'te4 plans to cut ail' ma~tJa.\ service on eout·to-cl)St and international flights .n in light Qfillcefligence InaleJting tbat al-Qaida. and otbC'r ~lTOnst grOUP!! mmy ha.ve Iiteppea up plans" CO l,I!.uocb i\ttac/cs on airline.s.SQft Target: airpQrt IiCcurity

Schum4lr'4" lettcr says ttJ,at "l\CeordiR& to statemerlts by TSA official:s, th~ "proposed euts in the air marshal program come inrespons~ to II $900 million budget hole it l:hc agency."

Whaf i~ 'homclanl:l .!Ii("curlty'?

Pr'Cllidc:nt Bush oms &iven formC'l" PeMliYlvania 00.... iom Ridge the job (Jf managing the govemmcll\t's dforU ~o dt!jttr lind. respond 10U;!lTorist a.ttIeQ. "'Homelancl liecutily~ - protecting AmeriCllflli on U,S. &oil ..... ia .. complel' mission requiring U'ie cOQrdinated work (IfdOzen' of fClteml, stltte and toeal.s-enClie=l.

FeclcflIl ail" marshailli lire anned WldercQ...tr agenl:5 dcplo)"td Qn U.S. airlinclIllrn:l.authorizcd to UIC <tClldly force to thwart a ~erTOrist

ineident. Prior to S(:pt. I t I 100 I. there were only a few dozen manhal:1" who flew l1'I4inly on in~emaUorud fli&hts~ But liner the ~ept.

11,2001, terror llttBck:i, Congrcljlji liuthorized iii huge int::l'ea:le: in air marshallt_ Fl'Om a pool of 150,000 applieants. II tew thow.and-the exaet number i.s clB5liitied~ were hirccl lind given special advllOccd antl·te:lTOrbi:t training.

The proiTllm has been beS(:t by a number of problems d.uring its quick rmttp·Up from It. few agcnl!i to U'ious~n<ts. MSNBC,comI'f:pQrted in June lMt mOn::: than 100 fedcraillir marshals h.d been fifCCl or !iUipped ofl:h.eir flIg;ht stlttwJ: for problems stemming (fOmtheir Stcurity clearanCe' biK:ksround invtstiglltions. In a4dition, some iiiI' mar"hals were flying wltholU ha...ing; recei...ed thcir finalseculily cleinUlefS, Trunsponadon SeewilY AdmlCiistration SQUrt::eol said,


Maurer, Charles H.Thu 08·Jul-04 8: 13 AM2SSquad5

From:Sent:To:Cc,Subject: SDR

Beginning in July 2004 each FAM must prepare one SDR per month. The object of Ihis inslruclion is 10 makeyou more alert to YOIJT surroundIngs not to generate bogus reports. However, rhis is part Df your perfDrmanceappraisal and you must prepare one a month.

_···.Original Message--·••

from; Plunken. John R.Sent; Wed 71712004 5:34 PMTo: 25Squad3; 25Squad9Cc:Subject: SDRs

As you all know, completing and submitting SDRs is an important aspect of our job and is consideredwhen evaluating a FAM's performance for each Quarter. Obviously, some FAMs have taken more of aninterest in this a'pect of our intelligence program. 1say this because a ,ignificant number of FAMs have neversubmitted one, 1can only encourage you to keep vigilant when transiting airports, etc. and when you secsomething suspicious, please consider sending a SDR. It doesn't have to rise to the level of PC, but if it looksout of place or the least bit suspiciou', submit one.

The SAC has asked that we discuss this aspect of our job with all FAMs and fully expects everyone toparticipate On a monthly basi,. There may come an occasion when you just don't see anything out of theordinary for a month at a time, but I'm sure th.t ifyou are looking for it, you'll see something. I think someFAMs are hesitant about submitting SDRs for fear of being questioned by headquarters or their respectiveATSAC. If it looks suspiciou" but does not rise to the level of an interview, etc., send in a SDR,

John R. PlunkettATSAC. Las Vegas FAM Field Offiee

(702) 263-8756

···--OriginaJ Message····.

From: Marzigliano, Michael S.Sent: Wed 8/4/2004 1:28 PMTo: 2SSquad7Co:SUbject: SDR Reports III

Ouys,As we discussed during squad meeting, their is a mandatory SDR (at least one) which'should be done eaoh month. Those of you that did not generate an SDR report for July2004, I need a memorandum simply stating why. Keep it short and direct. Any que,tionscall ...

Mickey Marzig'iano,ATSA C Squad 7

FAX NO, 516 873 1937 p, 27

·····Origin.1 Mess.ge•••••

From: Komilolf, GregorySent: Wednesd.y, July 07, 20045:59 PMTo: Billy Willi.ms; Charles M.urer; Craig Hamic; Douglas Hladky; John Plunkett; Michael Marzigliano;

Roger SchofieldSubject: REtyllNDER - FAMs SOil. REQUIREMENT

AS DlSCUSSED DURING TODA Y'S STAFF CONFERENCE, PLEASE REMIND YOUR SQUADMEMBERS THAT EACH FAM IS NOW EXPECTED TO GENERATE AT LEAST ONE SOR PER MONTH.

GREGORY N. KORNILOFFAssi't.nt Speci.1 Agent·in-ChargeU,S. Immigration and Customs EnforcementFederal Air M.rshal ServiceL.s Vegas Field OfficeOFF: 702·263-8756 (EXT: 562)CELL: 702-523-125ZFAX: 702-263-0832EMAI: komigOI@Secureskie•.net

From: William', Billy J.Sent: Thu 7/8/2004 \1;24 AMTo: 25Squ.d6Cc:Subject: FW: REMINDER - FAMs SOil. REQUIREMENT

Las Vegas FAM' continue to be last in the n.tion when it come, togenerating SDRs. Some LAS FAM. seem to be doing .11 of the reporting,while others are offering nothing. Conducting surveillance and generatingSPRs i' a part of your performance agreement. SAC Knowlton has decidedthat every LAS FAM must generate .tleast One SDR every month.

Billy J. William,A"i".nt to the Special Agent in ChargeU.S. Immigration and Customs EnforcementFederal Air Marsh.1 ServiceLAS-209Office (702)263-8756Cell (702)499.1781POA (702)335.4038

--·"Original M.ssage·_·-

From: Hamie, Craig A.Sent: Mon 7Il2/2004 1:18 PMTo: 25Squadl; 25Squadl0Cc:Subject: FW: REMINDER· FAM. SDR REQUIREMENT

DEAREST MEMBERS OF SQUAD -I AND SQUAD· 10,ALL FAMS IN THE AFOREMENTIONED SQUADS ARE REMINDED AND EXPECTED TO

GENERATE ONE SOil. A MONTH. PLEASE BE REMINDED THAT SDR'S ARE ONE OF THE MANYCRITERIA YOU ARE BEING EVALUATED....THANK YOU FOR COMPLYING WITH THIS OFFICEORDER. YOUR LOVING ATSAC, CRAIG....

·····Original Message--··-



WASHINGTON, DC

)


Appellant, ) SF-0752-06-0611-I-2

v. )

)



ADMINISTRATION )

Agency, )

) June 21, 2010

MOTION TO SUBSTITUTE CORRECTED PETITION FOR REVIEW

Appellant moves to substitute the attached corrected copy of the text for

his June 16, 2010 Petition for Review in the pending proceeding. Counsel today

confirmed that in the rush to meet the deadline, the wrong version of the file was

submitted. The final draft was filed, rather than the petition which had been

proofed and checked for citation accuracy.

The corrected copy does not have ay substantive changes. Rather, it

corrects errors in format, pagination, spelling, grammar and clarity, and citation

errors for evidence in the record.

Appellant submits the good cause to accept the corrected petition is that it

will improve the litigation record in this proceeding, both for clarity and to

correct citation mistakes that could be a catalyst for false issues. There is no


prejudice from this request to the Agency, and it may facilitate the ease of

preparation for its submission.

For the above reasons, Appellant requests that its motion be granted.


Thomas Devine

Legal Director

Government Accountability

Project



Telephone: 202-408-0034

Facsimile: 202-457-0059


Co-counsel for appellant


)


Appellant, ) SF-0752-06-0611-I-2

v. )

)



ADMINISTRATION )

Agency, )

)

ORDER

Appellant’s motion to substitute a corrected copy for his June 16 Petition for Review is

granted.

____________ _________________________________

Date for the Board


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ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY

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

Corrected PFR

Summary Page

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

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

Pleading Title : Corrected PFR

Filer's Name : Robert J. MacLean

Filer's Pleading Role : Appellant

Details about the supporting documentation

# Title/ Description Mode of Delivery

1 Motion for corrected copy Uploaded



Table of Contents

ROBERT J. MACLEAN v. DEPARTMENT OF HOMELAND SECURITY

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

Corrected PFR

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?

Yes

3. Do you declare, under penalty of perjury, that the facts stated in this pleading are true and correct?

Yes


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