UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE


)
ROBERT J. MACLEAN, ) DOCKET NUMBER
Appellant, ) SF-0752-06-0611-I-2
v. )
)
) ADMINISTRATIVE
DEPARTMENT OF HOMELAND SECURITY, ) JUDGE:
TRANSPORTATION SECURITY ) Honorable
ADMINISTRATION ) Franklin M. Kang
Agency, )
) November 16, 2009


APPELLANTS NOVEMBER 5, 2006 HEARING CLOSING ARGUMENTS

I. Standards for liability
At hearing, former Los Angeles Field Office Special Agent in Charge Frank
Donzanti testified that in acting as Deciding Official, his standard of liability for
agency discipline was only that the appellant should have known information was
not Sensitive Security Information (SSI). Mr. Donzanti testified at hearing that he
made no finding appellant did know he was releasing SSI. Intentional misconduct was
not an element of the charge. He added that the appellant may have had good
intentions, but was just misguided about his right to make the disclosure.
The Ninth Circuit Court of Appeals premise and instructions for this
proceeding reflects a different perspective from Mr. Donzanti. The court explained
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the issue is whether the agencys lack of clarity meant that the appellant had a good
faith belief the information was not SSI:
MacLean may still contest his termination before the MSPB, where he may
contend that the lack of clarity of the TSAs 2003 sensitive security
information regulations is evidence MacLean disseminated the text message
under a good faith belief the information did not qualify as sensitive security
information

Appellants Exhibit 3, at. 8.
1

Appellant contends he had a good faith belief, based on the agencys handling
of the information, and by his own training. This conclusion is reinforced by his
history of respect for secrecy, the absence of any analogous controversy about
unauthorized releases, and his willingness to risk retaliation as a Federal Law
Enforcement Officers Association (FLEOA) leader to publicly challenge secrecy
breaches that undermine aviation security.

II. Lack of clarity, because the agency did not treat the text message like SSI

Initially, this message violated nearly every rule in the book for handling SSI. Both
witnesses testified that agency policy requires SSI to be marked as such, and that the
text message was not. Similarly, both testified that agency policy requires SSI to be
sent to a restricted, controlled audience with explicit Limited Distribution
instructions; and that it was not. Both testified that agency policy requires SSI to be
password-protected when sent electronically outside a controlled environment such as
inside an agency facility between agency employees. As both witnesses testified, this

1
Unless noted otherwise, all references are to Appellants exhibits.
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text message was not. Both witnesses testified that agency policy requires its storage
in a secure, restricted area, and that this message was not. It is not disputed that
agency policy requires a security plan for maintenance and earliest possible
destruction of SSI. As Mr. MacLean testified and Mr. Donzanti did not disagree,
there was none for the text message.
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 any non-agency citizen who inherited a former
FAMs Nokia telephone number. The message in question was sent from agencys
@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 FAMs Nokia
mobile number was 702-555-1234, the email sent from @secureskies.net was sent
to 7025551234@mobile.att.net, so any AT&T Wireless customer and non-agency
employee who was assigned a former agency employees Nokia number, received a
copy of the late July 2003 text message.
Appellant further testified that he understood SSI information may be
disseminated from a controlled setting such as inside an agency field office. That is
not what occurred here, however. Appellant added that the late July 2003 text
message was broadcast like a person using a bullhorn in a public plaza.
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Despite all the inconsistencies, Mr. Donzanti testified that he did not consult
with the agencys SSI experts before deciding to fire appellant for what he should
have known.
Appellant testified in detail how Agency SSI practice has been highly
contradictory, illustrated by failure to secure schedules, and agency release of
information appellant thought illegally undercut its air security missions. For
example, some agency disclosures revealed where Federal Air Marshals were sitting
on which specific flights. Although the agencys position is that any disclosure about
deployment is SSI, on August 10, 2006, the Secretary of the Department of Homeland
Security (DHS) publicly announced the agency would increase FAM coverage on
United Kingdom/U.S. flights. (Exhibit G; at 2) At hearing the Agency did not choose
to dispute any of appellants testimony on the issue.
Similarly, while Mr. Donzanti testified that as common knowledge all
employees would have recognized that the text message was SSI, the Immigration &
Customs Enforcement / Office of Professional Responsibilitys (ICE/OPR) -- the
agency which carried out the investigation of the appellant -- Director of Intake in
Washington DC Matthew L. Issmans public letter sent to Congress and to the Project
On Government Oversight to post on their public website, stated that at no time did
[appellant, Philip Black, Spencer Pickard, and Frank Terreri] disclose classified or
critical-sensitive information. (Exhibit 5; at 2) Mr. Donzanti did not talk with
anyone from ICE/OPR about the issue, although his action was based on their
investigative conclusions. Agency FAMS headquarters Employee Relations Special
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Agent in Charge Maria del Carmen Perez also was unsure, due to timing and lack of
specificity. (Exhibit QQ)
It would be unreasonable and discriminatory to discipline appellant for not
correcting the agencys mistake. Mr. Donzanti testified that when he has seen
unmarked SSI such as schedules, but he does not recall correcting the error himself.
Similarly, appellant testified that he did not recall any of his peers ever adding SSI
markings.
Overall, even from the agency perspective, the text message transmission sent
contradictory signals that could confuse a reasonable person. It concerned
deployment, which agency policy says is SSI for specific flights. But agency
regulations also require that it be marked, sent through secure transmission means
with restricted access. The text message transmission did not comply with any of
those requirements. Despite his conclusion that the appellant should have known
better, Mr. Donzanti testified that if he had received the unmarked information
transmitted in an uncontrolled, unsecure manner, it would have raised questions with
him as well.

III. Good faith mistake.
Appellant testified in detail, and the agency did not dispute, that he has a
history of respect throughout his law enforcement career for confidential treatment of
information that could undercut government security and law enforcement missions,
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to the extent that he risked retaliation by blowing the whistle against irresponsible
breaches of secrecy.
Appellant testified that he did not intend to or think he was violating the law.
Despite some speculative bravado during his deposition after baiting, his firm belief
is that it is not acceptable to break the law in order to enforce it. He testified that he
never has intentionally.
Appellant testified how he worked within the Department of Homeland
Securitys (DHS) system, trying a supervisor and three DHS Office of Inspector
General representatives, who all told him nothing could be done before he accepted
their conclusion within agency context and went public. None warned him that the
information was SSI, and so needed to be handled in a restricted manner.
Because of all the inconsistent agency judgments and practices, appellant
testified that he gave up making his own judgments. To identify SSI he adopted the
view that he is just a grunt who followed orders, and let the label be his guide for
what was restricted and what was not.
Based on his training and practice among FAMs, appellant testified that his
personal view of the difference between SSI and unrestricted information centered on
disclosure of particular information. He thought SSI would be a date and particular
flight number or seating assignment. He viewed temporary cancellation of an entire
program differently.
In his disclosure to MSNBC Washington DC Bureau Chief Correspondent,
Brock Meeks, the appellant testified that he tried to operate within those boundaries.
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He did not share the text message or read from it. He protested cancellation of all
RON coverage two days after a terrorist suicide hijacking alert 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 at Page 3), and just after he and his entire FAMS Las Vegas Field Office
were mandated to attend unprecedented supervisory person-to-person emergency
threat briefings inside a secure area inside the FAMS Las Vegas Field Offices
Operations Branch concerning these alerts. (Exhibit 37)
The July 26, 2003 DHS suicide hijacking warning titled, Potential AI-Qaeda
Hijacking Plot in the U.S. and Abroad detailed a very specific plan. 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[] (emphasis added) for suicide
missions. The hijackers may attempt to use common items carried by travelers, such
as cameras, modified as weapons. (Exhibit 18 at Page 3)

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The appellant testified that he does not recall revealing specific dates. Since
the beginning of these proceedings, the appellant testifies that he never divulged
airline flight numbers and/or their airport origins and destinations. At hearing, he
unequivocally denied that he told Meeks the flights without coverage were Las Vegas
based, and the agency has not presented any contrary evidence. That is
understandable, since appellant correctly understood and was protesting blanket
national cancellation of coverage.
Nor has the agency established that he did. Meeks July 29, 2003 article
included specific dates for the cancellation. In Meeks July 30, 2003 article and an
August 19, 2007 email to appellants former representative, Meeks had two other
sources (Exhibits RRR & UUU) for his July 29, 2003 article. The 9
th
Circuit has ruled
that whatever the appellant said was SSI, but at the time he thought he was acting
responsibly in good faith. While legally mistaken, in his mind he did not consider
there was an issue of disclosing SSI.
Appellant's good faith reflected his well-taken concerns on the security threat.
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 that resulted in the July 26, 2003 DHS
Advisory. (Exhibit 26, at 5) ABC News obtained an un-redacted copy of this report.
(Exhibit 25):

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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 Qaedas 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.

The recently released 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-Qaida cell in Karachi. They were
designated as pilots for an aircraft attack inside the United States, hijack
and fly an airplane into the tallest building in California in a west coast
version of the World Trade Center attack

Former Las Vegas Field Officer FAM (now Immigration & Customs
Enforcement Special Agent) Michael Lums actually sent the text message at issue. In
a June 28, 2009 letter to U.S. Senator, Harry Reid, Mr. Lum described the
unprecedented, emergency suicidal hijacking threat briefings conducted inside the
appellants field office just before the July 28, 2003 disclosure to Meeks:
The pertinent information I have is in regards to the mission briefings which
were specifically addressed by the MSPB, and available on their web site
(Issued July 22, 2009). My knowledge of these incidents is first hand, as I was
intimately involved in key aspects within the LASFO Operations Branch
during late July 2003. I specifically remember these incidents since they
were mandatory and individually given and never happened before or
after. (emphasis added) (Exhibit 37)

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Appellants reasonable, careful approach to secret information is consistent
with the unprecedented nature of this controversy. Other than this incident,
appellants un-contradicted testimony is that he never disclosed or was accused of
making unauthorized SSI disclosures of any information with the SSI marking.

IV. Excessive penalty -- progressive discipline and compliance with Douglas
Mr. Donzanti testified that he was committed to the agencys progressive
discipline policy, whose principle is to try least oppressive actions first to see if they
work. He added that in approximately a year of active duty on Mr. Donzantis watch,
the appellant was an employee who did good work, got along well with co-workers,
did not cause problems and did not release any SSI intentionally or inadvertently
while under Mr. Donzantis supervision. Before terminating appellant, however, Mr.
Donzanti testified that he did not talk with any of his past supervisors to see if there
had been a pattern of any other instances of unauthorized SSI releases, or any other
confidentiality breaches. In fact, he did not even ask appellant whether he knew the
text message was SSI.
Similarly, Mr. Donzanti testified that he did not check to see how termination
compared to punishment of other employees who made unauthorized SSI releases. To
illustrate the disparate treatment, Atlanta Field Office FAM Anthony Rine publicly
disclosed on August 18, 2006 that there were imminently no Federal Air Marshals
(FAMs) on any United Kingdom/Atlanta flights after DHS Secretary Michael
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Chertoffs August 10, 2006 announcement of the United Kingdom liquid Improvised
Explosives Devices (IED) plot that 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. (Exhibit G; at 2) After an initial proposal to
remove, the punishment was reduced to 14-day suspension. Mr. Rine is now a federal
law enforcement Immigration Enforcement Agent with Immigration & Customs
Enforcement (ICE). The agencys Office of Inspection confirmed Mr. Rines
disclosure that the agency was unable to deploy FAMs on United Kingdom/Atlanta
flights for eight days after the suicide terrorist plot. When being pressed by agency
counsel during the hearing about being reckless for potentially endangering
nonstop, long distance flights six days before the plan went into effect, the appellant
explained that he believes someone would have eventually disclosed the operation
sometime during the 60 days after it went into effect like Mr. Rine did in 2006.
(Exhibit 6)
The May 25, 2006 House Committee on the Judiciary report included multiple
exhibits of FAMs trying to internally convey their safety and security concerns to
their managers, as early as July 2002 -- a year before the appellants late July 2003
disclosure -- that the agencys policy of requiring FAMs to wear suits and ties on all
missions, the requirement to bypass airport security checkpoints in plain view of the
general public, and the exposure of FAMs being forced to board aircraft in front of
passengers with small children and the handicapped, was exposing FAMs identities
and positions routinely. (Exhibit Z; at 98-109) The appellant testified that the general
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public, flight crews, FAMs significant others, and frequent fliers would have easily
noticed FAMs missing from nonstop, long distance flights between August 3, 2003
and September 30, 2003.
With respect to potential for rehabilitation, Mr. Donzanti testified that he did
not warn the appellant about recurrence, order or offer additional training, or exercise
his authority to order the appellant to cease any future unauthorized releases of SSI.
Mr. Donzanti in part based his decision on lack of remorse, which would have
been inappropriate if MacLean did not realize he was acting illegally. Appellant
testified that he did not. In fact, however, appellant felt deep remorse about the
consequences incurred for his family from all the subsequent retaliation, and for
tarnishing the agencys public image.
The appellant testified that he cringed when he watched President George W.
Bush explain the July 26, 2003 suicide hijacking alert the day after the July 29, 2003
MSNBC Meeks story:
Q[uestion from unnamed journalist] Thank you, sir. [the Department
of] Homeland Security is warning against possible hijackings this
summer. How serious is this threat, and what can you do about it? How
can Americans feel safe?

U.S. President George W. Bush: the [suicide hijacking] threat is a
real threat...we obviously dont have specific data... al-Qaeda tends to
use the methodologies that worked in the past... we're focusing on the
airline industry right now and weve got reason to do so. (emphasis
added) (Exhibit 20, at 4)

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Mr. Donzanti and the agency did not treat the appellant like a hopelessly
dangerously untrustworthy employee during some three months between learning that
appellant had disclosed the text message, and his September 13, 2005 departure from
the workplace after the proposed termination. In fact appellant 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 he was
finally removed from flying active duty. After appellant had his weapon, badge, and
credentials revoked, and was place on administrative leave on September 13, 2005,
there was no action to restrict him from agencys secure Internet portal,
( www.secureskies.net ), which gave him access to all of his Los Angeles Field Office
squads FAMs SSI-marked mission schedules. (Exhibit AA) He had this access,
although schedules indicated exact seating assignments which are classified as
SECRET by the agency. (Exhibit Z; Pg. 45) There was never any action to suspend or
remove appellants security clearance. Mr. Donzanti said administrative leave would
have taken too long to establish, but when pressed, he conceded the process could be
completed in days to a week, and was carried out in less than a week with another
Los Angeles FAM and the FLEOA FAMS Agency Chapter President, Frank Terreri,
who also was investigated for the release of sensitive, secure, or classified
information, (EXHIBIT Z at Appendix 13, Report # 005 at Page 4; Report # 007 at
Page 2) MacLean received satisfactory marks on his performance appraisal for
security-related issues during this period.
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With respect to clarity, despite repeating that everyone knew what SSI is, Mr.
Donzanti testified that he did not know what training the appellant personally had
received, agreed with his deposition testimony that current training is inadequate, and
did not make any efforts to counsel and train the appellant so he would know better
the next time. The appellant testified he did not receive any specific training on how
to recognize SSI.
Mr. Donzanti testified that FAMs get SSI training at their academy, but
appellant testified that he was in the first class of 35 FAMs to graduate after the
September 11, 2001 attacks, and received no SSI training during his three weeks of
training because his inaugural group of highly experienced federal law enforcement
trainers was tasked with developing training syllabuses for the subsequent thousands
of FAMs who would be processing behind him. Mr. Donzanti testified in his August
2, 2006 deposition that he joined the FAMS on July 28, 2002, nine months after the
appellant joined the FAMS on October 14, 2001. Donzanti would not have been
familiar with appellants background on this matter, and he did not testify about
making any effort to check. Appellant testified that the only SSI-related training he
received at the academy and post-academy orientation was that airline company
names and their flight numbers was never to be disseminated to non-agency
employees or sent via personal email accounts. It was not until months later, the
appellant was required -- as a condition of continued employment -- to sign affidavits
declaring that he understood the voluminous and confusing SSI policy and
regulations.
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Mr. Donzanti only considered discipline as a penalty, other than immediately
rejecting reassignment. Without any evidence that the misconduct was a mistaken
aberration, due to the one unauthorized disclosure Mr. Donzanti concluded that
appellant was not trustworthy for any other job in the agency. This approach cannot
co-exist with the principles he testified that he was enforcing.
In the agencys September 13, 2005 proposal to remove the appellant, the
agency official writes that the appellants unauthorized media appearance and
unauthorized release of information to the media raise serious doubts about [his]
honesty, fitness for employment, reliability, and trustworthiness. As Mr. Donzanti
agreed at hearing, it is inaccurate that the agency accused appellant of being
dishonest when he was fully forthright with the ICE/OPR investigators on May 4,
2005, in his August 2, 2006 deposition, and during the November 5, 2009 hearing
about his disclosure to Meeks. Appellant did not try to conceal to ICE/OPR his
dismay that about the text message that meant nonstop, long distance flights would be
defenseless during a terrorist alert. But he did not disclose specifics, or mean to
disclose SSI. Indeed, without the appellants honesty and the existence Meeks other
sources, the agency would have no case to remove him.

V. Affirmative Defenses (Off-duty conduct discrimination for FLEOA leadership
[(b)(10)]; and First Amendment violation for retaliation against freedom of
association, including speech issued as a FLEOA FAMs VP [(b)(11)]. .

A) Protected activity.
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Appellant testified that FLEOA was established in 1977 to uphold integrity
and professional standards for federal law enforcement personnel, including giving
federal law enforcement officers a collective and credible voice before congress.
FAMs are not allowed to form unions or collective bargaining units. Appellant
served as Executive Vice President of the FAMS agency chapter within FLEOA. In
that post, he began a series of intensive series of disclosures protected by the First
Amendment and the Whistleblower Protection Act. As he testified, these occurred
steadily until the agency placed him under investigation for the SSI disclosure on
May 4, 2005
Appellants communications were protected by the First Amendment from the
start, including the text message. He believed the agencys actions to cancel Remain
Over Night (RON) coverage were illegal and seriously threatened Americas national
security by leaving the highest risk airplanes unguarded against another 9/11 style
hijacking -- a view 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; Exhibit 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 forced the Agency to reverse its shocking,
incredible, foolish, boneheaded, nonsensical, sorry episode of a
operational plan to remove FAMs from nonstop, long distance flights, with the
obvious immigration, visa screening, and airport security loophole. As stated in the
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Aviation and Transportation Security Act (Public Law 10771), Title 49 of the
United States Code Section 44917: deployment of Federal air marshals on every
such flight determined by the Secretary to present high security risks [and on]
nonstop, long distance flights, such as those targeted on September 11, 2001, should
be a priority.
In a press conference, U.S. Senator Boxer when even so far as thanking the
appellant and the other 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)

The U.S. Government Accountability Office (GAO) documented in a March
31, 2004 report on the agencys cancellation of the August 3, 2003 plan to remove
FAMs from nonstop, long distance flights for two months, that this plan would have
endangered the same aircraft used for the terrorist attacks on September 11, 2001, so
any flight three hours or longer would have been unprotected. (Exhibit 33, at 7-8).
As discussed above in detail, appellants subsequent FLEOA disclosures about
secrecy breaches properly earned similar expressions of congressional support and
confirmation.

B) Balancing test.
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It is undisputed both from Mr. Donzantis and appellants testimony that the
disclosure about cancellation of RON coverage addressed a vulnerability to aviation
security on nonstop, long distance flights. The threats to public security by alerting
potential hijackers were all speculative. Even if the policy had not been reversed, the
threat would have been minimized by the advance nature of the disclosure six days
before the policy was scheduled to take effect. The only actual damage claimed by
the agency at hearing was indirect -- administrative disruption from reversing the
agencys decision to eliminate coverage.
As seen from Mr. Donzantis testimony, appellants July 28, 2003 disclosure
made a difference by resulting in continued air marshal coverage of the highest risk
flights. The reporter promised to and followed through on getting the information to
key members of Congress, whose outraged protests the next morning led to reversal
the following day.
2


C) Nexus
Agency headquarters displayed unrestrained hostility toward the FAMs
FLEOA chapter and leadership, to the extent of chain investigations, involuntary
administrative leave and public humiliation of 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, Mr. Donzanti ordered two

2
The agencys position has been contradictory, since in other contexts it claimed that the whole text message
was a mistake. (Exhibit 3, at 3) If that was the case, there was no net disruption from appellants disclosure
that led to its correction.
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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) As discussed above, FAMS opened an
investigation of the 2003 incident only appellants repeated disclosures on secrecy
breaches as a FLEOA leader. On balance, the actions against appellant are grounded
in First Amendment retaliation from every angle.
Agency headquarters controlled this personnel action. Mr. Donzanti testified
that he did not draft the final decision letter; headquarters did. In fact, he did not
change a word, or make any contribution besides signing it. His liaison throughout
the process was FAMS headquarters Policy & Compliance Unit Special Agent in
Charge Robert Bond who was part of Mr. Quinns shop. Mr. Donzanti and Bond did
not discuss any other option besides termination. The appellants last name was even
spelled incorrectly on his April 10, 2006 notice of removal.
There can be no serious question about FAMS Director Quinns animus
toward the FLEOA leaders. He wrote in a February 11, 2005 memorandum to the
DHS Inspector General Immigration & Customs Enforcement (ICE) Assistant

3

As indicated in the U.S. House of Representatives House Judiciary Chairman F. James Sensenbrenners May 25, 2006
report titled, In Plane [sic] Sight: Lack Of Anonymity At The Federal Air Marshal Service Compromises Aviation &
National Security, after the ICE/OPR investigated and cleared (ICE/OPRs complete Report of Investigation of Mr. Terreri
is Appendix 13 of the May 25, 2006 House Judiciary Committee report (Exhibit Z)

) Mr. Terreri of multiple allegations --
including the unauthorized release of sensitive, secure, or classified information, (Exhibit Z, Appendix 13, Report # 007 at
Page 2)

it took six weeks for Mr. Donzanti to inform Frank Terreri and place him back on flying active duty. (Exhibit Z; at
22) (Exhibit Z, Appendix 13, Report # 005 at Page 4)

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Secretary Michael J. Garcia that the appellant and his fellow FLEOA FAMS Agency
Executive Board Officers were disgruntled, malicious, obscene,
irresponsible, abusive, and part of a de facto labor organization. He accused
the appellant and his fellow 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) Mr. Quinns Policy Compliance Unit even
went so far as to obtain the military records of the appellants father. (Exhibit 4)

D) Independent justification.
The agency did not offer any alternative grounds for termination besides the
late July 2003 disclosure. There is a vacuum of any evidence in the record about
agency problems or gripers with the appellant on performance or misconduct
grounds. It is virtually not in dispute that the only matter that counted for the agency
was protected activity. In his August 2, 2006 deposition, Mr. Donzanti stated that
even if the late July 2003 disclosure was officially legal, because it occurred at all he
still could not trust Mr. MacLean enough to work with him. (D) In his hearing
testimony, Mr. Donzanti reluctantly conceded his deposition testimony that the
appellant would not be trustworthy to work with, even if he had a legal right to make
the July 2003 disclosure.
Pleading Number : 2009018770 Submission date : 2009-11-17 02:24:58 Confirmation Number: 1940561872 page 23 of 26
Certificate Of Service
e-Appeal has handled service of the assembled pleading to MSPB and the
following Parties.
Name & Address Documents Method of Service
MSPB: Western Regional
Office
Appellant Closing
Arguments
e-Appeal / e-Mail
Eileen Dizon Calaguas, Esq.
Agency Representative
Appellant Closing
Arguments
e-Appeal / e-Mail
I agree to send a printed copy of the electronic pleading with attachments to
non-efilers by the end of next business day, as follows:
Name & Address Documents Method of Service
Thomas Devine, Esq.
Appellant Representative
Government Accountability
Appellant Closing
Arguments
Fax
Pleading Number : 2009018770 Submission date : 2009-11-17 02:24:58 Confirmation Number: 1940561872 page 25 of 26
Project 1612 K Street, NW,
Suite 1100
Washington, DC 20006
USA
Larry A. Berger, Esq.
Appellant Representative
Mahon and Berger 21 Glen
Street, Suite D
Glen Cove, NY 11542
Appellant Closing
Arguments
Fax
Pleading Number : 2009018770 Submission date : 2009-11-17 02:24:58 Confirmation Number: 1940561872 page 26 of 26