MacLean v. DHS - MSPB: MacLean's Petition For Review Before FULL Washington DC U.S. Merit Systems Protection Board - July 21, 2010

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 Kangs 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 Kangs 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 Appellants 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.
Pleading Number : 2010012902 Submission date : 2010-06-21 21:39:40 Confirmation Number: 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 FLEOAs 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 Appellants 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 Appellants
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 Agencys 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 Appellants 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).
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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 AJs 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 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.

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). Appellants 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 Agencys
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 Agencys 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 Appellants 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 plans 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)

FLEOAs 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
Appellants 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. Quinns 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 Sensenbrenners 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
Agencys 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)
Appellants 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. Quinns 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)
Appellants 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 Appellants 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, Appellants 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 FAMs 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
Appellants 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 managements 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 AJs 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 Appellants 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)
15
(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 Appellants 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 Appellants 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
Agencys secure Internet portal, ( www.secureskies.net ). That gave him unfettered access to all
of his Los Angeles field office squads flying FAMs SSI-marked mission schedules. (Exhibit
AA) There were approximately 30 FAMs on the Appellants squad. Some of Appellants 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 Appellants 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 Appellants 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 didnt cause any problems for [his] office . . . he was doing the good work that he
had been doing [.] . . . He didnt cause trouble for me. (Donzanti Dep, at 26-27) Appellant had
received satisfactory marks on his performance appraisal for security-related issues throughout
Donzantis supervision, including the May-September period.
On August 31, 2006, nearly four months after terminating Appellant, the Agencys 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 Agencys]
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 Appellants 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 Agencys 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 JUDGES CREDIBILITY DETERMINATION IS
DEFICIENT AS A MATTER OF LAW

While the AJs overall credibility assessment specifically does not reference intent, (Id.,
at 18), he rejects Appellants 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 informations 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 AJs
erroneous treatment of Appellants alleged lack of remorse will be addressed in an analysis of the Douglas penalty
factors. 3) The AJ assessed from Appellants 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 partys 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 Appellants
testimony was untruthful, deceptive or misrepresented. Instead, the AJ stated that [i]n observing
the Appellants 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 AJs observation that the Appellants testimony was inconsistent, the AJ does
give specific reasons and record citations where he viewed the Appellants hearing testimony to
conflict with documents in the record. The AJ does not cite internal inconsistencies,
contradictions or changing versions during the Appellants testimony. Such internal
inconsistencies could be demeanor-based credibility observations. However, the AJs 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 Appellants testimony, the AJ might couch this as an observed credibility
finding, as follows: In observing the Appellant at hearing, I found that the Appellants 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. Its 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 Appellants testimony with prior written statements to ICE OPR.
8
See also the AJs 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 PDAs. Despite the logic of Appellants views on these facts, the AJ was wont to brand his preferences for
the Agencys 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 Boards 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 Boards rejection of AJ credibility
determinations that are not sufficiently sound:

The Boards rejection of an AJs demeanor based credibility findings will be upheld
where the AJ has failed to sufficiently support them in accordance with the Boards 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 AJs determination does not conform with these requirements.
B. The totality of the record demonstrates that Appellants 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 Appellants
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
Appellants ICE/OPR statement, not the rest of his testimony.
There is not a basis to reject Appellants 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
messages 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 Appellants 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 Appellants 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 messages 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 shutdowns 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. Appellants testimony was consistent.
The AJ applied the Ninth Circuits 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 conclusions 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 Appellants 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 Appellants motives, the AJ also attacks Appellants credibility
generally due to lack of remorse. (ID, at 18, 31) The AJs conclusion is not literally accurate, as
Appellant expressed remorse about undermining the Agencys 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 AJs 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) Appellants 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 Appellants 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. Appellants good faith is consistent with his commitment to legitimate law
enforcement secrecy throughout his career.

The AJ did not consider Appellants 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 Appellants
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 agents
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 Quinns
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 youve 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 Managements
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 Appellants reasonable
belief.

The AJ overlooked a series of objective factors that support Appellants 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 Agencys 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 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
31
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. 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)
Appellants mistake was particularly understandable in context. The informations
uncontrolled release was in nearly total contrast with the terrorist alert briefings, when the
Agency imposed secrecy restrictions impossible to misunderstand.
While the Ninth Circuits most specific instruction was to consider the relevance of these
factors to cause good faith confusion, the AJs decision does not consider their impact at all other
than to reject that they outweigh his other credibility concerns.

32
3. Agency leaderships 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 Appellants
warning that all coverage had been canceled.
4. Appellants peers shared his belief that the text message was not SSI.
The AJ did not consider how Appellants 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 messages lack of specificity.

The most significant peer to share Appellants 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 Im 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 Agencys 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. Appellants 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 Appellants intent, and that his
concerns were reasonable.
34
On balance, there is ample basis for the Board to substitute its judgment for the AJs 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, Appellants 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 Agencys
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 Appellants 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 Appellants
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 Agencys 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 Officials 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 DOs assessment of this record, leaving the Board free to substitute
its own judgment.
1. The AJ failed to assess Deciding Official Donzantis credibility.
While attacking Appellants 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. Donzantis 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 FLEOAs and Appellants 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. Quinns 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. Donzantis 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. Donzantis 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 Appellants SSI training; communicate
with anyone at ICE OPR connected with the investigation; check with the Agencys 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 Appellants 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 Appellants September 14, 2005 Proposal to
Remove; restrict Appellants duties during the June through October interim; take any actions
to restrict Appellants security clearance or access; take any actions to restrict Appellants access
to the Agencys 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.
Donzantis 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 didnt need to consider SSI markings as a
mitigating factor, but also agreeing with Appellants 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 messages 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 Appellants
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. Hes 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 didnt
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 Appellants 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 disclosures 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, Appellants 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 AJs analysis directly quotes Appellant, but doesnt 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 publics confidence in the Agencys
ability to prevent a terrorist attack. (ID, at 34) The AJ also found, however, I have no reason to
doubt that Appellants 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 Appellants favor.
c. Supervisory confidence and failure to consider lesser penalties. Mr. Donzanti
testified that after learning of Appellants disclosure, he lost all confidence in the latters 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 officials 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. Donzantis lack of
confidence for Appellant to handle any job, from June-September he did not reduce Appellants
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. Donzantis
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 Agencys 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. Donzantis adverse
finding rests on Appellants 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. Donzantis
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 AJs 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 Secretarys public statements to the contrary in the aftermath of a liquefied Improvised
Explosive Devices (IED) plot. The AJ defends ARs 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, ARs 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. Appellants 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 Agencys
Employee Relations SAC advised that timing undermined a termination penalty. On balance, the
46
evidence not considered by the AG suggests thats 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 partners 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 Appellants removal increased
efficiency of the service.

The AJ found a sufficient nexus that Appellants termination benefits the efficiency of
the service to sustain the penalty. His support for this conclusion is that Appellants 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 AJs 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 Agencys public safety
mission, and that there was no actual harm beyond speculative administrative disruption
necessary to correct a mistake.
The AJs 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 Appellants 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 Appellants 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 Agencys own position is that the text
message was a mistake. That means Appellants 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 Agencys 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. Appellants 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 Appellants 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 Appellants actions may have indeed strengthened FAM presence on
the Las Vegas mission flights, as asserted, it was counter to the Agencys 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 decisionsWhile I have
no reason to doubt the Appellants assertion that he took these actions to benefit
the nation and to increase the efficiency of the service, I find that the Appellants
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 governments
mission to the public. In this instance, it means that maintaining Americas 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 APPELLANTS 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 Appellants
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. Donzantis 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. Quinns headquarters staff was the
active partner preparing Appellants 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/OPRs 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 AJs analysis did not consider the totality of the record or relevant issues
Despite Mr. Donzantis 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. Donzantis 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. Donzantis role almost literally
limited to signing the paperwork in 2006, and then defending the decision in litigation. Mr.
Donzantis FLEOAs 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. Appellants 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 Appellants 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
Appellants 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 APPELLANTS FIRST AMENDMENT
RIGHTS

A. Appellants termination violated the First Amendment.

All of Appellants public dissent as a FLEOA representative also was protected by the
First Amendment. Gilbrook v. City of Westminister, 177 F.3d 839,867-68 (9
th
Cir. 1999) The
AJs analysis about the Appellants 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., Appellants July 10, 2009 interrogatory and Agency response: [Appellants] 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 Appellants 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, Appellants 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
Appellants 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 Appellants 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 Appellants 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 Appellants 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 Appellants 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 Appellants testimony at hearing reflects that his unauthorized
appearance on a national news program, rather than his FLEOA activities, was the catalyst [for]
the ICE/OPRs 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 Appellants
speech caused the probe, the only basis for his termination. No independent reasons for the
investigation have been raised, and the Agencys 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 Appellants
first amendment rights canceled his organizational off duty conduct rights, he must be entitled to constitutional
protection.
55
concern, and Appellants 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 employees 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 AJs 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 Appellants
termination serves the efficiency of the service. (ID, at 23-28). While conceding that Appellant
acted in good faith for the nations 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 Agencys 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 publics 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 publics 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 employees 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 AJs balance sacrifices the
constitutions 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 publics right to know in
circumstances far less compelling. See., e.g., Rankin v. McPherson, 483 U.S. 378
(1987)(employees expressed hopes for Presidents 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 (9
th
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 publics 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 Appellants 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 managements 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 DElia 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 AJs 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 Agencys 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 years 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, Appellants 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
Boards only previous consideration of the issue. Kent v. General Services Administration, 56
MSPR 536 (1993) Last years 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 decisions 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 (9
th
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 decisions
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
counsels 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 Appellants 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: tomd@whistleblower.org

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
Email: FLEOAatty@aol.com

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

APPELLANTS REPLY TO AUGUST 2, 2010 AGENCY RESPONSE TO
PETITION FOR REVIEW

The Agencys response is non-responsive. Rather a defense of the Administrative
Judges (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 AJs decision:
Factually, the context for Appellants 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 Appellants 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.
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 pages 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 Appellants 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. Quinns 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 agencys
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 Appellants 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 AJs 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 Appellants removal, a conclusion the Agency took the initiative to echo. That

2
The Agency contends this means Appellants 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 employees 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 Boards authority to consider this issue created by the AJs
findings.
In short, the Initial Decision established Appellants 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 issues relevance to a WPA defense that the Board cancelled
with its June 22, 2009 decision affirming the Agencys interlocutory appeal. That is not
possible, because whether Appellant made a good faith mistake about the text messages

3
The agencys 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 Appellants
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.APPELLANTS TESTIMONY WAS CREDIBLE.

A. Appellants testimony was consistent.

The AJ rejected Appellants 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 Appellants 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 Appellants
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 Appellants 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 Appellants 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 AJs 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 AJs 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, Appellants position was consistent without exception. Its genuine
nature was proven by his action blowing the whistle on what he believed were
managements public disclosures of SSI, knowing that he was exposing himself to vitriolic
animus. It also was reasonable, reflecting the DHS chief Michael Cherthoffs statements to
the press on the overall scope of FAM coverage, even limited in scope to particular British
airports.
B. The attacks on Appellants 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 AJs finding that Appellant is not credible, because
he has not expressed remorse.
7
The Agency did not dispute Appellants 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 Appellants 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. Dept 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 Agencys
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 Agencys mission. By contrast, Appellant engaged in good faith behavior to
carry out the Agencys 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 Appellants 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 Agencys 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 Appellants 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. Dept 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.
Appellants 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. APPELLANTS TERMINATION FAILS THE DOUGLAS PENALTY FACTORS
While the Agency diligently recites deciding official Donzantis 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 Appellants conduct
with penalties for equivalent behavior in other regions.
The AJ erroneously failed to consider whether Mr. Donzantis testimony was
credible, although he was the sole Agency witness. Regardless of Mr. Donzantis personal
good faith, his own testimony was that his headquarters liaison for a decision he did not
write was the Policy Compliance Units. 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. Quinns 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 Appellants 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.
Donzantis 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 Appellants 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. Dept 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. Donzantis 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 mistakes 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 Agencys 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. Dept of Homeland Security, 2010 WL
1889080, that the circumstances for offenses must be compared. But it then ignores
Appellants detailed analysis why the circumstances were worse in each other SSI case.
The Agency distinguishes the AR case based on that employees remorse, but the remorse
was for consequences to a victim falsely targeted for ARs misconduct. (Exhibit F, at 19,
39, and 44) There were no victims for Appellants disclosure to whom he could apologize,
other than the Agency from embarrassment. In JSs 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 JSs
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. APPELLANTS FLEOA EXERCISE OF FREE SPEECH RIGHTS CAUSED
HIS TERMINATION.

The Agency does not dispute Appellants contention that free speech rights can be
protected in the context of outside activities. Rather, it reiterates the AJs 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 Agencys 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 Appellants 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. Quinns 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 Appellants 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 APPELLANTS EXERCISE
OF CONSTITUTIONAL RIGHTS MUST BE APPLIED CONSISTENT WITH THE
CODE OF ETHICS FOR GOVERNMENT SERVICE.

In assessing Appellants 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 AJs 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 Codes priorities. The Agency
does not deny that constitutional precedent consistently favors protecting the public from
adverse consequences, despite agency disruption. Nor is the agencys 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
nations 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 Assn 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 Appellants. 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 (5
th
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 WPAs 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 Appellants 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.
Attorney-Advisor
TSA Office of Chief Counsel
450 Golden Gate Avenue
P.O. Box 36018
San Francisco, CA 94102
Email: eileen.calaguas@dhs.gov
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: Office of the Clerk of the
Board
Appellant's reply to
8/2/2010 Agency
response to PFR
e-Appeal / e-Mail
Eileen Dizon Calaguas, Esq.
Agency Representative
8/2/2010 Agency
response to PFR
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:
Thomas Devine, Esq.
Appellant Representative
Government Accountability
Project 1612 K Street, NW, Suite
1100
USA
8/2/2010 Agency
response to PFR
Fax
Larry A. Berger, Esq.
Mahon and Berger 21 Glen Street,
Suite D
Glen Cove, NY 11542
8/2/2010 Agency
response to PFR
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
Pleading Interview 3
Uploaded Pleading Text Document 4
Certificate of Service 21
Table of Contents
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 BERGER
FAX NO. 518 873 1937
P. 01
Immigration & Customs Enforcement
Office of Professional Responsibility
Office of Professional
Report of In,vestigation
MACLEAN, Robert
Federal Air Marshal
Los Angeles, CA
200405873
WARNING
OPR SENSITIVE DOCUMENT
HAND CARRY OR REGISTERED MAIL ONLY
STORE IN SAFE OR LOCKED CONTAINER
THIS DOCUMENT CONTAINS INFORMArlON REGARDING CURRENT AND ON-GOING ACTIVITIES OF A
SENSITIVE NATURE. IT IS FOR THE USE OF OFl%ICIAL U.S. AGENCIES AND
REMAINS THE PROPERTY OF THE OFFICE OF PROFESSIONAL ReSPONSIBILITY. IT CONTAINS
NEITHER RECOMMENDATIONS NOR CONCI-USIONS OF THE OFFICE OF PROFESSIONAL
RESPONSIBILITY
DISTRIBUTION OF THIS DOCUMENT HAS BEEN LIMITEDAND DISSEMINATION OR
REPRODUCTION ARE PROHIBITEDWITHOUT PRIORwRlnEN AUTHORIZAliON OF THE ORIGINATOR,
SEP-27-2005 rUE 11:49 AM MAHON BERGER
FAX 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 provisions
of the Privacy Act of 1974. It is the property of the Office of Internal Affairs and is loaned to you
for official purposes only.
This material must be safeguarded from unauthorized disclosure. It should not be left
unattended nor discussed with unauthorized persons. Those individuals who review this
material 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 any
person, other than someone acting in his or her official capacity who has a need to review the
report, Without the expressed written consent of the Office of Internal Affairs.
DATE
SUBJECT
MACLEAN, Robert
NAME
REVIEWED BY
SIGNATURE
CASE NUMBER
200405873
REFERRED TO
FAX NO, 516 873 1937
P, 03
I A SEN SIT I V E
DEPARTMENT OF HOMELAND SECURITY 1. TECS ACCESS CODE. 3
ICE
2. P]l.GE, 1
R E P o R T o l' I N V E S T I G ]I. T I o N
3. 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 Homeland
Security, Immigration _ Cue toms Enforcement, Federal Air Marshal Service.
The report alleges that Federal Air Marshal Robert J. MACLElAN, Los
Angeles, made an unauthorized media appearanoe on the NBC Nightly News
television program.
An additional allegation of unauthorized release of information to the
media was also uncovered during the course of the investigation.
15. DISTRIBUTION'
CR
16. ORIGINATOR'
(TITLE)
17. APPROVED BY, _ _.

18. ORIGIN OFFICE, CH 19. PHONE, 847 981 3400
CHICAGO
20. TYPIST, RUZEVICH
I A SEN SIT I V E
THIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS THEl PROPERTY 01' TH
DElPARTMENT OF HOMELAND SElCURITY, ICEl. ANY FURTHER RElQUElST FOR DISCLOSURE OF
THIS DOCUMENT OR INFORMATION CONTAINED HElREIN SHOULD BE REFERRED TO ICE HEADQU
TERS TOGETHER WITH A COpy OF THE DOCUMENT.
FAX NO, 516 873 1937
P, 04
I A SEN SIT I V E
DEPARTMENT OF HOMELAND SECURITY
ICE
1. PAGE' 2
2. FILE ID, 200405873
REP 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 Enforcement
(ICE), Office of professional Responsibility (OPR) , Joint Intake Center
(JIC) , Washington, DC, received a Incident Report (CIR) from the
DHS ICE Federal Air Marshal Service (FAMS). The report alleges that
Federal Air Marshal (FAM) Robert J. Los Angeles, California,
made an media appearance on the NBC Nightly News television
1). An additional allegation of unauthorized release of
information to the media was also uncovered during the course of the
investigation.
ALLEGATION ONE:
SUBSTANTIATED
ALLEGATION '!'WO,
SUBSTANTIATED
Unauthorized Media
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 MACLEAN
was prOVided with the following documents for his review and signature,
1. Administrative Interview Notice of Rights and Obligations (FAMS Form
OMS F 2130 July 04).
2. Disclosure warning for Non-Bargaining Unit Employees CJ.
During the interview FAM MACLEAN admitted to appearing on tbe NBC Nightly
News television broadcast on September 9, 2004, as the subject shown
wearing a hood and identified only as PAM "Mike." FAM MACLEAN admitted
that be did not obtain authorization from FAM management prior to making
the aforementioned media appearance. FAM MACLEAN denied knowingly
releasing, in any form, sensitive, secure, Or classified information to
any unauthorized persons groups, or associations. Following the
interview, FAM provided OPR/Chicago with an affidavit dated May
4, 2005 2).
ALLEGATION TWO, Unauthorized Release of Information to the Media.
I A SEN SIT I V E
THIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS THE PROPERTY OF TH
DEPARTMENT OF HOMELAND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OF
THIS DOCUMENT OR INFORMATION CONTAINED HEREIN SHOULD BE REFERRED TO ICE HEADQU
TERS TOGETHER WITH A COpy OF THE POCUMENT.
FAX NO, 516 873 1937
P, 05
I A SEN S I T I V E
DEPARTMENT OF HOMELAND SECUR:tTY 1. PAGE, 3
ICE
2. FILE ID. 200405873
REP 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 of
FAM MACLEAN. to con ucting the 1n erV1ew, FAM MACLEAN was provided
with the following documents for his signature and/or review:
1. Administrative Interview Notice of Rights and Obligations (FAMS Form
OMS F 2130 July 04).
2. Disclosure Warning Non-Bargaining Unit Employees (Appendix C).
During the interview PAM MACLEAN admitted that he spoke to MSNSC reporter
Brock Meeks regarding three newspaper stories authored by Meeks. FAM
MACLEAN admitted to providing Meeks copies of FAMS Las Vegas Field Office
e-mails that mandated FAMS from that office compose one Surveillance
Detection Report per month. FAM MACLEAN denied knowingly releasing, in
any form, sensitive, secure, or classified information to any
unauthorized 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 below
lieted 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, AUgust
11, 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, July
30, 2004 (Exhibit 6).
5. Six (6) li'AMS Las Vegas Field Office inter-office e-mails dated
from 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 E
DOCUMENT, TO YOU gOR USE ONLY, REMA:tNS THE OF TH
PEPARTMENT OF HOMELAND SECURITY, ICE. FURTHER REQUEST FOR DISCLOSURE OF
THIS DOCUMENT OR HEREIN SHOULP BE REFERREP TO ICE HEAOQU
FAX NO. 516 873 1937
P, 06
I A SEN SIT I V E
ICE
1. PAGE, 4
2. FILE ID' 200405873
REP 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, dated
May 4, 2005.
3. Copy of MSNBC news story "Air Marshal. pulled from key
flights," by Brock Meeks, July 29, 2003.
4. Copy of MSNBC news story "TSA in witch hunt Air Marshals
say," by Brock Meeks, August 11, 2003.
5. copy of MSNBc news story "Air Marshals struggle with
growing 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 from
July 7, 2003 thru August 4, 2003.
I A SEN SIT I V E
THIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS THE PROPERTY OF TH
DEPARTMENT OF HOMELAND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OF
THIS DOCUMENT OR HEREIN BE REFERRED TO ICE HEAOQU
SEP-27-2005 TUE 11:51 AM MAHON BERGER FAX NO. 516 873 1937 P. 07
____ . __ 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<m
on 9/9/04. The FAM complained ofFAMS policies, implying t,morists can easily
identify and cut FAM's throats if dress code policies were not chnnged. If substantiated,
his appearance would be in violation ofint=al directives.
SACDavid R. Krlowlton was on annualleave the week of 9/69110/04 and did not view
the NBC broadcast. On Saturday 9/11/04, LASFO ATSAC JohnPlunkett advised SAC
Knowlton that PAlM MacLean's former supervisor, ATSAC Michael Marzigliano, had
watched NBC Nightly news on 9/9/04 and believed the voice of the hooded FAM to be
that of MacLean on his extensive contact with thc FAM.
ON 9/13/04, SAC KnowltoD requested FAM Headquarters forward a video copy ofthe
news broadcast. luso on 9/13/04 a LASFO FAM 011 TDY assignment, Michael
Kopanski, telephMically advised he viewed the broadcast and believed the hooded FAM
to be MacLean, bflSed on voice recognition. SAC Knowlton was on emergency leave the
afternoon of and 9/14/04 due to a death in the family. video was received at
the LASFO on 9/15/04. .
On 9115104, ATSAC Marzigliano confumed what he had told A1'SAC Flunkett, stating to
SAC Knowlton t4l1t, based on voice and mannerisms, he uneqUivocally believed the
hooded FAM on NBC news to be MacLean, whomhe had supervised. He also advised
that subseq\lent the broadCllSit, other FANS who served with MacLean came to him and
opined 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 that
her staff had heart! from other LASFO FAMs who viewed the broadcast and complained
it was MacLean <in NJ3C news. She also advised her smfthad alLegedly been informed
that MacLean waj; llpset that his voice had not been disguised, prompting him to request
it not be further
Finally, on 9/15/04, the video was shown to MacLean's current Eupervisor, ATSAC
Charles Maurer. ATSAC Maurer opined that the voice of "Mike" was probably
MacLean 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 MacLean
has previously announced to this office that he is the "PAM vice presidellt" of the Federal
Law Enforcemertt Officers Association (FLEOA). He has not b"on interviewed
concerning 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. 09
FAX NO, 516 873 1937
P, 10
U.S. IMMIGRATION & CUSTOMS ENFORCEMENT
OFFICE OF PROFESSIONAL RESPONSIBILITY
AFFIDAVIT
STATE OF,
COUNTY OF;
I, Robert J. MacLean, who after being duly sworn state the
following'
Q; Please staee your name, current position and post of duty?
A; Robert James Maclean, Federal Air Marshal, assigned Los Angeles
Field Office.
Q; How long have you been employed as a Federal Air Marshal with the
Department 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 Television
program?
A: Yes
Q: Did you appear on the NBC Nightly News television broadcast of
September 9, 2004 as the subject shown wearing a hood and identified
only as PAM "Mike
H
?
A: Yes
Q; Did you have prior permission from the Federal Air Marshal
management 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 aforementioned
television news program?
A: After FAMS management ignored mine and other FAMs' conoerns
regarding rAMS' checkpoint bypass procedures, aircraft boarding
procedures, dress / grooming codes, mandatory hotel policy and FAMS
managements constant desire to d1vulse Sensitive Security Informat1on
to news organizations such as CNN and NBC Nightly News. I reported
1
FAX NO, 516 873 1937
P, 11
these problems to the Oakland DHS I otG office, but no Agents f o l l o w e d ~
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 to
him 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 Brock
Meeks, MSNSe, August 4, 2004; TsA in 'witCh hunt,' air marshals say by
Brock Meeks, MSNSC, August 11, 2003.
NBC Producers Tom Costello and Mario Garcia from New York, NY conducted
my interview over a phone line.
I have never provided any documents of any nature to Meeks, Costello
and Garcia.
For the August 4, 2003 article, I read Meeks word for word the six July
7, 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 endangers
public health and safety. Mandating intelligence reports can misdirect
valuable resources and get many people hurt or killed. None of these
e-mails were labeled having "Security Sensitive Information."
For the July 29, 2003 article, I informed Brock Meeks thetall Las
Vegas FAMs were sent a text message to their Government issued mobile
phones that all RON (Remain overnight) missions up to August 9 would be
canceled. My supervisor told me that the Service ren out of funds for
overtime, per diem, mileage and lodging.
It is FAM policy that Sensitive Security Information will not be
broadcasted via text messages to our Service' issued mobile phones.
0, Are .you aware Of any procedures/policies/directives regarding media
contact?
A, Yes -ADM 3700 (para 17) which prohihits contect with the media.
Q, Have you ever released, in any form, be it verbal, written, or
otherwise, sensitive, secure, or classified information to any
unauthorized person or persons, group or groups, association or
associations?
A, No, not to my knowledge.
Q: If you were to seek permission for a media interview who would you
contact?
A' I assume it would be the FAMS oirector or the Public Information
Office.
0' Who is your current supervisor?
A, Jim Murray (ATSAC)
2
FAX NO, 516 873 1937
P, 12
Q: Have you ever had the following persons aot as your supervisor in
any 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 was
on extended leave he (Plunkett) replaced him temporarily. ATSAC Maurer
supervised me for approx. six months just prior to my transfer to the
LA field Office.
Q: Who is LASfO Muriel Blackburn?
A: She is a civilian operations officer assigned to the Las Vegas field
Office. She did not supervise me in any capacity. I've known her
since 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 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
preboarding procedures, mandatory hotel policy, dress and grooming
codes and their policy (If divulging Sensitive security Information to
the media.
Thomas D. Quinn's executive staff:
Robert f. Beyers, Deputy Director
John Novak, Assistant Director
George Papantoniou, Assistant Director
Raymond M. Dineen, Assistant Director
Colleen Callahan, Assistant Director
Michael H. Weikert, Assistant Director
David Adams, SAC, Headquarters Public Information Office
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.
Regrettably, the following personnel continue to ignore Oirector Quinn
and his executive staff's gross mismanagement,
Michael Chertoff, DHS Secretary
Richard L. Skinner, Acting DHS Inspector General
Randy Beardsworth, Acting under Secretary for Border Transportation &
Security
Michael J. Garcia, Assistant Secretary of ICE
These individuals must stop allowing Director Quinn and bis executive
staff to threaten national security and listen to the rational advice
of ONE of the only true advocates of commercial aviation security,
Federal Air Marshal Frank Terreri.
3
FAX NO, 516 873 1937
P, 13
D ~ e to the fact that my ohain of command, the DRS OIG and my
Congressmen all ignored my complaints and would not follow them ~ p with
investigations, I have NO REGRETS or feel NO REMORSE for going to a
credible and responsible media representative, Srock Meeks. Brock
Meeks reporting these gross mismanagement issues has resulted in
immediate and positive change in deadly FAMS policies.
The contents of this statement are true and correct to the best of my
knowledge and belief.
Statement consists of 4 pages.
by
this 4th day Of May 2005,
Senior spe . I Agent
Department Homeland Seourity
Resident Agent in Charge
4
FAX NO, 516 873 1937
P, 14
Appendix c
Disclosure Warning for Non-Bargaining Unit Employees
Form
Department of the Treasury
U.S. Customs Service
WARNING TO NOT DISCLOSE INVESTIGATIVE INFORMATION
You are being interviewed as part of a continuing, official investigation by the U.S. Cus-
toms Service Office of Internal Affairs. As this investigation is sensitive in nature, you are
instructed not to discuss the nature of this interview with any other person(s), except pri-
vate legal counsel.
F.ailure to comply with this directive could sUbject you to disciplinary and/or criminal
action for interfering with or impeding an official investigation.
eel!\- ' have read and understand the above warning.
51"1
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 an
employee of the U.S, Department of Homeland Security, Federal AIr Marshal Service.
This is a purely administrative inquiry. The p rpose of this interview is
statement to questions concerning
as it relates to your official duties.
You .have a duty as an employee of the Federal Air Marshal Service to answer
questions concerning the performance of your official duties. Your failure to
answer questions posed to you, as they relate to your official duties. may cause
you to be subjected to disciplinary action, including possible removal. Furnishing
false information may result in criminal prosecution.
Any information or evidence you fumish in response to questions put to you during this
interview, or any information or evidence, which is gained through your answers, may be
used against you in administrative proceedings.
I have read the above advisement and understand its contants.
\<0%" R"f b:1.P-. G lctA.r:J
Print Name
PAM$ Fol"/'l'l OMS P 2130 JUly 04
\
,
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 Ihe Transportation Administration' hll-S alerted
fcctel1l1 ait mSfSho,ls that 11$ of Pridl7o)llhey will nQ longer bi: t"Qvcring cross-cQunl'l')' or Oithts, MSNBC.com has learned,
The dCQi:iion to drop cQverase on nlstus that many C';'j)C:11$ (;Qn!lll:ler 10 be the highe't rilil.; of lInlLCk. tppartntly stems from,ll, pQ!iey
dccisiol'i to rcwotk. so air m,ll,t$nals don't MV!!!! to im::ut c;<pensl! of stayin" overnight in hoccls.
SEVERAl- A1R. cQntocled by MSNaC.com contlrmcd Ihat they Wlm: vil70 lex! mClisascs on (heir tSAi8sucd
ceil phQ:l1l!!l to l'lc::-.k theit fot chi'll\ge!l.
II All ovetnillhlli, litart.ing from AUgU:>f first the nlnlll, werl:: cancelcd:' ZIl\ nir Inllnlhol told MSN13C.c;ul'I\, "My told
me DI'e-mi,ghu fOf' ;!llllfiela b.l;!j"S' Cllncll'lcd for an inde-finite OImt.II,mi of tlme-," ;aid !be marlih.,l, who
anonymity. "ll1e lil.lpervisor:s sliid they only had lime to sched\lleg through Ute ninlh,+'
C\lrrclit tlill:ht which rul'lthrough rhl!; end or July, ore iitllying inti1ct, lIflolher air rnlln;:hal told MSNBC.com.
Federal air rniU'ilhals: arc armed under<:ovcr ascnts dcployctj on U.S, airline::: anc:t authorizea to ule delldly farce to thwart a terrorist
intidertt. PrlQrto Sept, II, 200t, Ihere weI'(: only /I, few dozen mar,ihafli who flew mllinly on inle:tniltiorl.ill niShtS. But aner (he Sept,
11, 200 I, [<:qor authorized a huge inerell!iC in air ma",hills. From it. puol of 250,000 applh::anu, a few thouliand the
e:l:ac.t number is classified -- wert. hircc:t lind given advaneed training.
miitShals laId MSNBC.cQm 'hi:t the program i$ sutretins budgl:l lToubleii and Ihllt the aSllmcy i,fi lOQking to mak;<: Cutli wherever
it tan" enrollment in uPSradl/ld U'lliliing rOt air marshals. known u "PhMe n," WII.5 Sl.Ispencled.
Tb/!: TSI\ declined 10 cornmCl1i on the bl:hind this wrek'lj BChE:dill.e cQw18e:'. "TllC agC'ncy commenl 00 acta,l}; of
air matShalmi$$ioli Clpcr.nil,)ns:," 'aid arian Tl.lrmail , Ii. TSA .!ipokesman.l-lowevClr, "roSA rernllina 10 aViation :It:icurity and
wilt fa:1Ge ail Illpprcpnatc 10 ro reaible lhreat inforrndtiQn." he sdld.
(0 the Ihin budgl::fCl!'Y oonlifl'ffinl!; were:' at 'he raoe f,)( pullbac:b'. turrnlill rhllt .11 within TSA are
to em.going In addition, "TSA'li eUrTent tll;sk. is 10 bahmeo the need to meet (;hansirtg threats with the need to live
whhin the 0llency's he SQid, "The federal ail' milrshll.l bu4set is under review to d<:tcnnil\e how 10 mect two

the mQve to pull mlltshab from Ilrt)' flight requirintf them to stay ovcmillht particularl)' disturbing to :some becaUSe it eoincide:;
witn a neW hijllclting ls:nl.ed by the DopartrTient Sacurit)l. That Wll.l'nins: meIn6 ill.Y$ that Ilat 14;a.st one of
thesc IlltQ.CKIi could bt:J executed P)' tltc end Qfthe sl.Immer,ri Iccorning 10 1\ fAmiitarwilh the document,
The OKS IflcmD alsQ that ft,CW il'ltelligence iMicl1Ccli that hijw;:k.lIIrs this time may !limply try to I::rash tbe planes rather than fly
them. "HijllQ'kel'S may attempt to use common itemll Cllrried by travelers Iluch I\:l camerilli, modified liS weapons," And hijttkers "may
tTy 10 calm by m4il.:jng !hem they lin: onl)' bc.iD8 rJlken hOllf.ase anQ lInol on $Uioide mi5.sion.
1t
"AJ-Qalda planner'S have' primarily suicide hijackil1S5' ana bombins:!;! a" the mQ:ilt ptomisil1S mefhod tQ desrro)' aircrllft il1
nisht a:; Wfllllls to :ltrike ground tft.rge,",," memo nAllack venueS ma)' include the United K.ingdom,ltal)', Austtalill or the Eil!lt
COllsl of (he United S(B.tcli to the high CQna:nh'ation Q(aovemmcnr. mUieuy and lII.;:anomie cArgt::U"," tho l11<:mo Wllm:i:.
The <:anceHil.ctol1 Qf Qvc:mia:h( !JtDys hu- floating BroUnd the air mRl'llhal fUIlli;l1' mill (or' weekN;, based on convc:r:;Mionll
MSNBC.com has bad with In the air marshal proatam.
When the rCDlily bit, lj:cveral air IltlU1lhals VOiced their d.isbtliefthal tltc I::utbacks We1'C coming now. in thc Qfncwly is:l.ued
waming1l.
''The that Il;tili is coin<:icling with the new Ilirline Ih1'CAIS, blows our min,ds,1I an air l11at1hBI siaid. "We con'r cover [every
night] but IlC pUl us on Ihe: his:h-lhreilt plane;, 1M Ones Ul::fcliit the c.ountry,1t tho air mal'Shal said, l10tinjJ that th.: four
planfl:l hijllcked on Sept. t I were aU :iehcdu\c;d 1lill:hbland th.ere:foft. filloa to clI.pn(jlt)' with ovhltion fuel. Not having nir
coverage on those t>1'es offliabtll, "il'sjust pJilip SQAIjI," Ite wr snid.
lilt ma.nlhDJ pro$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 flend air mSOihals been or strippeQ o( Iheir "iSMsllItus for problems
.slcmmin:s from illoOir $ecllr11)' clt::anllJ,"c background 1/'1 additio'l, .!lome t1ir mat'li'nal5 nying wjthotlt llaving 1'e:'(;lIIived
thCli1' final sc:t:urit)' elearanl;es, Tnmllportatiem AdlninilitnlliQll 50UI'C.:S !laid.
SEP-27-2005 TUE 11:54 AM MAHON BERGER FAX NO, 516 873 1937 P, 18
FAX NO, 516 873 1937
"
P, 19
TSA in 'witch hunt,' air marshals say
HOffi':I.md Security dCl\ics o((ormllol in\'csda:a(iQf\
by N. Mcck.$, MSNBC, 11 Au&ust 2003
WASHINOTON. II 'the TflI,nsponlllion Security Adrnil'iiJtrluion is conducting a "witth hunt" to ferret Qut and 4iacipllne
in tilt:! federal air 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:H
them. The or Homclilohd SC(;urie)'. whieh the TSA.. dCl'iiea th/ll an)' sueh in\'csugation 14 talcin& place.
HOWEVER, A DS,PARTMEN1' Of l-lomcll\.nd Security did lId:l'\Qwlcdge thllt il.l\ in\'cstigation i:s undct way s\ln'Qundlns;
dIe involving II dl!cisioJl 10 pull J)jr mill'$n.:l!s from high risk Illgh/.S in an llnempt to lit tne cash
TSA. first reponed in lal.e J\.II)' on MSNBC.cOfTI.
OHS l.!i lnvestiaaiing Ot not I;en:nin Inll:fnal milongemeot regnrding federal ;:"jc were
lllJthori"Zc!:d, SOl-/d BOiU'l Roc:hrkilS'se, ol spokesman, "and if wh() may hAve authorized ilJDSe,
Sh()l'tly aner M'SNBC.c:om 'hat "tSA was pUlling llir nlllrshalli" from nighcs, based On inf()('I"(Jalion provided by .!iDUrCtiS wWlll'I
nlr marshal PtQsrilm, an "mvestigllt!\le wit(;h hunt Will; staned," on.c air marshnl who anooym!l}' told MSNaC,com,
Tne ;\ir war!. D.!i un4erc:o....el" law enforcement ofllcers nbljlu'i! airline:;:: llli such, thl::)' arc ohl!fI gi....1::1'I llCCCliii to
mis.$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 air marshal PtQSJum Itligh.( ha"'l!
leAked infcmnnUDI'I lo the. mcdill.
Howe....t'r, Rochtk./l..5Se say DHS wwj)J llJ'Iy incidents" of tmplayc:es disclosin,g what they know (0 be classified
information, ws....cry go....ernment timplo)le!li, liol'l'leoQe in marsh.1I.1 lil:-rvic:e. is b)' law from relensing
clas.liiftd lnfoMlI:tiotl unll:s:! gi...en express pcnnlssitm 10 dO M he said, And If 8JI in....l!;sligaJ.ioll found Ihsl that:
informaliol'l WILli outside the i.ge::nl::)'. it would bt a violation o(law and (he person or P'=rsCins Qli.ubjl!ct Ii;) arrcsllll\d
proscet!(ion, M RQeltrkMse 1i41a. .
But some nir mal"lihals did to MSNBC,l;OfTI >lbol.lt being pulled from high-fisk tlisnts bl::C1llJse ,1'1,,)' tlt'l( ./Ict alon4' hurt
overnU 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 move
to pull lIlr mnn;,hal.$ ffOm :lome nights simpl)' because of bUdget woes,
HI WAnt thAnk the air marsl1ll.ls who forward Imd told the ,,"Hit ll.bDl,lt what Willi goit\.g an within their agen(;)' and brinc:ing this
luue [nle tne saiel Set\., E1nrbara aox,cr, P-CaUf" Quril'llJ a news eenferl::l'ICIIl, l believe IhM eutting air marshals WI.IS
clearly in Ihe mix. of bUltCellU'y cut.!; beinl; COl'Isidered. H
FUp-nop Oil IIIlr manlhal
Ofle Il.ir mll.riihll.ltold MSNBC.eom that his el'ltil'e fIeld office was siycn an Qral briefing aM told iln investia:atian is under wa)'"
And thaI Qf"det ro help t1nd. propl!: to the medill, USA. P'.lIlnOt Act WllS BPifil to be uJiC.d" to pu.1I home phone and. Intertll:lt
record.s. Several other air mD.l"$hals: MSNaC.(om heard from K'id simU", ,!ItQrll::.ii of an under way; one nddltional air
marsha:l alsa tMt: his t\ipervi;lo( had ml$ntiOlK!d Ul.: list Qf the: Patriot Act.
Ml$1ie IIl1c,.ltuorrs 1It'e' nvc. they 5how mi&'plaq.:d saU:l Rep, Carolyn D-N. Y., ch4lr af Ihc TASk
Fon:e on HornelJn4 Sceurity. '"They &hould.n
l
( be going After c::ivil.1jervant5 dOlh8; lheir patriatic dyty; they .should bt:I goit\.1 aflcr
whoever made the bonehelWcd deci.sion IUlod whoev.:r approved It af fhc OMB. W
CAN'T lNVOJ<:E PATIUOT ACT
8)' law. however, the: TSA isn'l .1Iowed to lnvola: the Patriot Act. That law was devcloped to ,{VI! brol\der su.rveillnn;:e and
pro*Q(orlal power to hlw enforcement acet\.eil;lj in order to beucr t=:ombat
'Thtc4tcninglo l.I.l1e ihe PalriCK Act wls not 11'1 oflo.w, il's an act of lulld. Steven AJ'tr:;rgOCld, wno tUn, the' Projct,l:t on
OO1lemlJlent Sm.")' for the Fed.(.r:J,tion or American SeientiJts, -The politics o( this are the IIgenC')' i::t trying lo regulate what kifld of
interi'lCuQn iu. employees have with Ute IMdia ..nd the &t;nc:ra1 public: At'tcrgood said. w'That is 'fiat rJiu:s qQesliot\.lI of
agency &Cod faith.
And from the next illi "for Congrelili to the behnviar of the agenc)' bcCal.lllc the)' arc irth4sy navel'l't crosscd
the bOlJndlJ}', ofbll4 f.lLith,. Af!er.O()d
Th.llf'a exAC!ly lhe lhinltin, of Rep, M.II.loney; 3he tQ the chll.im:len of tbe and JUdlcjary Ol-nd the
t=:haltTnllfl ind nanking member of the HOUle: Seh:.ct C()tl'ImiUec:: on HOfTIeland. SCC;l.Irit)' u.rgil'lg further action,
invoke. or ihrcatcn 10 invoke, tbe USA A,c.;l, II. law meant to tertOrlam.1o pamotj;: employees to be not
OfIly iIlagical, bul. mi.l,I:$(: af the IlIw ;u we'll. Maltl'l1ey In hqr lelrer the JUd:ciaz-y committee leaden. urle your 10
formll.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.$
II.n lnro lew.temmltlC (rom tho,(e 111 UJe Air Manhl:l prognlnt (a determinc if "rc.rol.lteeS ace
milidircet4el.-
Copyl'ignl <:I :rom MSN8C
SEP-27-2005 TUE 11:55 AM MAHON BERGER FAX NO, 516 873 1937 P, 20
*
-,
I
FAX NO, 516 873 1937
P, 21
Air marshals struggle with 'growing pains'
"utonomy of fjeld offices creale, bumpy ride for ronk-.nd-file
Federal air marshals are shown here perfonning tactical tra.ining inside a retired airliner. On the job. they
must adhere to adress code tfla.t some SI\Y makes them easily identifiable.
By Brock N. Meek'
Chief Washington correspondent
MSNBC
Aug. 4, 2004
WASHINGTON - Nearly three years after the government', dramatic resurrection of the morihund Federal
Air Marshal Service in the aftermath of9111, the agency is hitting turhulence as it 'truggle' with what one
agency official called "growing pains."
Arecent incident, as well as a new ad hoc policy directive, indicates that the ride could he getting bumpier
for the high.profile agency before it gets bener:
The incident involved two federal air manhals from the Cleveland office who were recently
stopped from boarding the plane they were assigned to ptotect because of a dispute with an air marshal
regarding tbe agency's dress code standards, MSNBC.com has loamed. The plane then took off
without 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 has
Ioamed. These reports are used by rank-and-file air marshals to detail and track suspicious activity and are
then analyzed by intelligence experts looking for possible terrorist trends. Adirective mandating the
submission of these reports crea.tes a Uticket quota" mentality, one air marshal ,supervisor told
MSNBC.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 from boarding the plune th(,"y 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 when
interpreting and implementing ageney policy. The situations suggest thatageney polieies can vary greatly
from one field office to another, puning rankand-tile air marshals at odds with ,upervisors.
The dress code issue is perhaps the most visible example of the disconnect between management and
working air marshals.
Air marshals have been upset with the agency's dress code since it WaS officiallY instituted early in the
agency's life, Rank-andfile marshals claim the "suit and tie" dress code makes them too conspicuous to .'
other passengers and by extension, any 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 to
modify it.
During a recent congressional hearing, Homeland Security Secretary Tom Ridge, when questioned on
whether 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 security
concerns. However, "thore is flexibility [in the dress eode) depending on what mission the [air marshal) is
going 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 do
not discuss intemal issues involving our personnel." However, Adams did say that the service uadheres to
professional standards to instill confidence and respect to both passengers and crew, especially if an
emergency arises at 30
1
000 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 in
their 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 overstep
tbeir 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 detection
report] per month," says an internal air marshal service email obtained by MSNBC.com. "The Object of
this 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 it
1
you'll see something: - Internal eymail F ~ d e r a l Air
Marshal Service
Another internal e-mail obrained by MSNBC.eomaddressing the same issue says: "There may come an
occasion when youjwt don't see anything out of the ordinary for a month at a time, but I'm sure if you are
IODking for it, you III s e ~ som.ething. n
Part ofthe air marshals' job is ro file SORJI"any time they see anything of a suspicious nature," Adams
said. "Obviously the federal air marshals are out there everyday in the aviation domain and who better than
them 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 no
mandatory requirement that [air marshals] mu.t send in an SORonce a month for any appraisal purposes,"
adding, "we want pertinent, valuable information sent in."
GroWing room
Any disparity in policy among the various field offices should be chalked up to an agency that "is kind of
like newly poured concrete," said one Held office supervisor. ''There just hasn,tt been enough time for the
concrete to harden up..'
This .upervisor, who like others in this .tOry spoke on the condition of anonymity. said tho air marshal
service is "still going through growing pains.... It's a matler of getting the agency built out," h. said. "I
think it'$ gaing to be the best place to work in federal law enforCement in a couple of years, to tell you the
truth. And it will ju.t take time for all these problems to .ort out."
One of these longstanding problem. within the agency hss been a conspicuo.us lack ofpromotion of rank-
and-file air marshals inro .upervisory positioll$. Until now.
"Applications are being vetted right now. and we anticipate, hopefully within the next 60 daya, to announce
some [promotions to].uperv!sory posidoO$ 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 being
assigned 10 work with various loinr TerrorismTask Forces, in which they work with orher members of
federal law enforcemenr on reITorism-related oases. In addition. the entire agency transferred from being
under the control of rhe Tran.portation Security Agency into Immigrations and Customs Enforcement late
last year.
"lCE offers the air marshal service multiple investigative resources, such M additional access to
intelligence, 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 MSNBCIfTteraclive
.'
SEP-27-2005 rUE 11:56 AM MAHON BERGER FAX NO. 516 873 1937 P. 23
Flip-flop on air marshal schedules
Ale mllrshtb will to nt OR InrernaUonf4l. trtp.ll
FAX NO, 516 873 1937
P, 24
July 30 Af\t!if' MSN'BC,com reported !\Cw policy, Ihe Security AdministriUion said it would lmmediiitcly
!Ictu:du.ling air mllr:ohah: bal:k on ctos:i-eauntry and international nights. NBC'j; 'Pete Williams reports,
By 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 hQurs
after MSNac.l:om repOrfl:d that air marshals lNefe beirlll pulled rrQm toasc t1iShl!i bccau.se problems associated with thll
costli of for ttJe marshals,
THE OEPARTMENT of Homeland on Wednesday bla.med tha confusion Qn II mixup in t;ofl\munlclI.tion and said ttJe
department bad bl!;(!;n worKina: with .air marshal officio-Is Qn Monda>, to cOrTeel ttJe situation.
II Amcriell should KnOW (bat $...ery IiI" marsballhal we bave i.s being deplayed, and additional l"(:$o1.lrl::t:1. arc being directed ta thai
Vf!.r'/ critical mission:' HQmelllDd Security Secretary Tom ltidge said Wtdnes4aY in a spl!'l:lch. Part Qftbe plan to add resoun::eS
iI'lCiludeli'lI.!'tcali of 100 air l'Rarsha\!i: now doias: othcr jobs with TSAtlL lip,okesrrum for the said.
New hijat:\( WlIl'l\ings
TtJe droppinG from tJjghlZ Ihllt mim)l to be:,I!.i the hiShest risk ofatl"ack t:amtI to lighi Tuesday when
se...eral air marsbills CiQf\taeted by MSNBC.com confirmed that tbey wen: alerltd vill it l'text Qn tbelr TSA.-issued cell pbones
u> .\:hCClk theJr :ichodulcs tot' changc$.
The marshliLll found Ibat, tu::a:innlns Fridll.y, I:h.ey blad. not beerl lIICiheduled for any flights tbJt would require them to stlty away
tram That m....snt'aa sir mlutna:} cover'tte On 01' CI'O'$.!I-cowUry mghts", rile ...ery kind targcr.ed in thc S.ept.
II, '200 I, ten'orist auaeks.
Oem!! renew call' rur ,s/,lcllrily runding
the- tnQw to pull mlll'!"hals from dlos!! lHghu WB..$' parl/(;ullU'ly d.l:oturbitllf to it c::oiac:ided WW:l II neW niih-Ie".'
tJijat::kins: threat by the Departmant of Hom$lllnd Sceurily. that IN/lming memo said tbat "at OM of thesCi 3naclcs covlcl be
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 bu4geotary fors::ing cutbaek4" in sC'yeralllreas,
in<:ludina: Illying otTof federil.t KreeMrs and the recently announced sU$penslon Qf ad...irICied Ptwsa nlraining for its agc;nts,
cold MSNBC.eom. ihc': move to cut out tulfhts requiring sir mA(fhllls to sUy ovcrnight :ltemmed trom those ;ame budgc:t
problc:ms, MSNBC.c::om wDS told by IU'I ag(:ncy source,
Sen, Scoumel', Y. (.lined cqll"nans.ensical" In I(:tf.er Weanet$y to Ridge'. Schumer's UfS-eos
OHS tD "immediately l'eVI!r'!iC rq)or'te4 plans to cut ail' service on eoutto-cl)St and international flights .n in light Qf
illcefligence InaleJting tbat al-Qaida. and otbC'r 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, "proposed euts in the air marshal program come in
to II $900 million budget hole it l:hc agency."
Whaf '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 dt!jttr lind. respond 10
U;!lTorist a.ttIeQ. "'Homelancl - protecting AmeriCllflli on U,S. &oil ..... ia .. complel' mission requiring U'ie cOQrdinated work (If
dOzen' 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
ineident. Prior to S(:pt. I t I 100I. there were only a few dozen manhal:1" who flew l1'I4inly on But liner the
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 antlte:lTOrbi:t training.
The proiTllm has been beS(:t by a number of problems d.uring its quick rmttpUp from It. few agcnl!i to MSNBC,com
I'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 (fOm
their Stcurity clearanCe' biK:ksround invtstiglltions. In a4dition, some iiiI' mar"hals were flying wltholU ha...ing; recei...ed thcir final
seculily cleinUlefS, Trunsponadon SeewilY AdmlCiistration SQUrt::eol said,
FAX NO. 516 873 1937
P. 25
FAX NO, 516 873 1937
P, 26
Maurer, Charles H.
Thu 08Jul-04 8: 13 AM
2SSquad5
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 make
you more alert to YOIJT surroundIngs not to generate bogus reports. However, rhis is part Df your perfDrmance
appraisal and you must prepare one a month.
_.Original Message--
from; Plunken. John R.
Sent; Wed 71712004 5:34 PM
To: 25Squad3; 25Squad9
Cc:
Subject: SDRs
As you all know, completing and submitting SDRs is an important aspect of our job and is considered
when evaluating a FAM's performance for each Quarter. Obviously, some FAMs have taken more of an
interest in this a'pect of our intelligence program. 1say this because a ,ignificant number of FAMs have never
submitted one, 1can only encourage you to keep vigilant when transiting airports, etc. and when you sec
something suspicious, please consider sending a SDR. It doesn't have to rise to the level of PC, but if it looks
out 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 to
participate On a monthly basi,. There may come an occasion when you just don't see anything out of the
ordinary for a month at a time, but I'm sure th.t ifyou are looking for it, you'll see something. I think some
FAMs are hesitant about submitting SDRs for fear of being questioned by headquarters or their respective
ATSAC. If it looks suspiciou" but does not rise to the level of an interview, etc., send in a SDR,
John R. Plunkett
ATSAC. Las Vegas FAM Field Offiee
(702) 263-8756
--OriginaJ Message.
From: Marzigliano, Michael S.
Sent: Wed 8/4/2004 1:28 PM
To: 2SSquad7
Co:
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 July
2004, I need a memorandum simply stating why. Keep it short and direct. Any que,tions
call ...
Mickey Marzig'iano,
ATSAC Squad 7
FAX NO, 516 873 1937
p, 27
Origin.1 Mess.ge
From: Komilolf, Gregory
Sent: Wednesd.y, July 07, 20045:59 PM
To: Billy Willi.ms; Charles M.urer; Craig Hamic; Douglas Hladky; John Plunkett; Michael Marzigliano;
Roger Schofield
Subject: REtyllNDER - FAMs SOil. REQUIREMENT
AS DlSCUSSED DURING TODAY'S STAFF CONFERENCE, PLEASE REMIND YOUR SQUAD
MEMBERS THAT EACH FAM IS NOW EXPECTED TO GENERATE AT LEAST ONE SOR PER MONTH.
GREGORY N. KORNILOFF
Assi't.nt Speci.1 Agentin-Charge
U,S. Immigration and Customs Enforcement
Federal Air M.rshal Service
L.s Vegas Field Office
OFF: 702263-8756 (EXT: 562)
CELL: 702-523-125Z
FAX: 702-263-0832
EMAI: komigOI@Secureskie.net
From: William', Billy J.
Sent: Thu 7/8/2004 \1;24 AM
To: 25Squ.d6
Cc:
Subject: FW: REMINDER - FAMs SOil. REQUIREMENT
Las Vegas FAM' continue to be last in the n.tion when it come, to
generating SDRs. Some LAS FAM. seem to be doing .11 of the reporting,
while others are offering nothing. Conducting surveillance and generating
SPRs i' a part of your performance agreement. SAC Knowlton has decided
that every LAS FAM must generate .tleast One SDR every month.
Billy J. William,
A"i".nt to the Special Agent in Charge
U.S. Immigration and Customs Enforcement
Federal Air Marsh.1 Service
LAS-209
Office (702)263-8756
Cell (702)499.1781
POA (702)335.4038
--"Original M.ssage_-
From: Hamie, Craig A.
Sent: Mon 7Il2/2004 1:18 PM
To: 25Squadl; 25Squadl0
Cc:
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 MANY
CRITERIA YOU ARE BEING EVALUATED....THANK YOU FOR COMPLYING WITH THIS OFFICE
ORDER. 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
Project
Telephone: 202-408-0034
Facsimile: 202-457-0059

Co-counsel for appellant

)
Appellant, ) SF-0752-06-0611-I-2
v. )
)
ADMINISTRATION )
Agency, )
)

ORDER

Appellants motion to substitute a corrected copy for his June 16 Petition for Review is
granted.

____________ _________________________________
Date for the Board
Certificate Of Service
e-Appeal has handled service of the assembled pleading to MSPB and the
following Parties.
MSPB: Office of the Clerk of
the Board
Corrected PFR e-Appeal / e-Mail
Eileen Dizon Calaguas, Esq.
Agency Representative
Corrected PFR e-Appeal / e-Mail
l agree to send a printed copy of the electronic pleading with attachments to
non-efilers by the end of next business day, as follows:
Thomas Devine, Esq.
Corrected PFR Fax
Project 1612 K Street, NW,
Suite 1100
USA
Larry A. Berger, Esq.
Mahon and Berger 21 Glen
Street, Suite D
Glen Cove, NY 11542
Corrected PFR Fax
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
Pleading Interview 3
Uploaded Pleading Text Document 4
Motion for corrected copy 70
Certificate of Service 73
Table of Contents
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
Pleading Submission Confirmation
Filer's Logon Name: RJMACLEAN
Filer's Name: Robert J. MacLean
Date Submitted: 6/21/2010 9:39 PM
Confirmation Number: 984973420
Pleading Number: 2010012902
MSPB Office: Office of the Clerk of the Board

MacLean v. DHS - MSPB: MacLean's Petition For Review Before FULL Washington DC U.S. Merit Systems Protection Board - July 21, 2010

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MacLean v. DHS - MSPB: MacLean's Petition For Review Before FULL Washington DC U.S. Merit Systems Protection Board - July 21, 2010

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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

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