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STATEMENT OF THE CASE Following a September 13, 2005 proposal, A27-29, the Agency terminated MacLean, effective April 11, 2006, for an unauthorized disclosure of SSI. A30-32. MacLean appealed to the MSPB. Prior to an initial decision, the Ninth Circuit Court of Appeals reviewed whether the relevant information constituted SSI, since it was not marked as required by Agency regulations. MacLean v. Dep’t of Homeland Security, 543 F.3 rd 1145, 1152 (9 th Cir. 2008)(“MacLean”), held that the information was SSI, but added he could contest his termination at the Board by raising the lack of clarity of 2003 “sensitive security information” regulations to prove he made the disclosure with a good faith belief the information did not qualify as sensitive security information. After the Ninth Circuit ruling but on interlocutory review prior to an Initial Decision (“ID”), in MacLean v. Dep’t of Homeland Security, 112 M.S.P.R. 9 (2009)(“MacLean I”), the Board denied MacLean’s Whistleblower Protection Act affirmative defense. It held that Agency SSI regulations could qualify to prohibit a disclosure by “law,” thereby removing protection otherwise available under 5 USC §2302(b)(8)(A). On May 12, 2010 the Administrative Judge (“AJ”) issued an ID upholding the termination. A33-74. Prior to the Board’s final decision on MacLean’s subsequent Petition for Review, Representatives Dennis Kucinich and Carolyn Maloney filed an amicus 4
ief with the Board in support of MacLean. A75-97. In MacLean v. Dep’t of Homeland Security, 2011 MSPB 70 (2011) (MacLean II), A1-26, the Board upheld the AJ’s decision. It modified MacLean I by creating a distinction within agency regulations: those required by Congress qualify as “law,” but that those merely “authorized” do not and cannot cancel otherwise-available WPA rights. STATEMENT OF FACTS MacLean began Federal service on May 20, 1996 as a Border Patrol Agent. A184. After the September 11, 2001 (“9/11”) tragedy he applied to the Federal Air Marshals Service (“FAMS”), and was in the first graduation class after the hijacking. A185-86. Prior to termination, he was not the subject of any disciplinary or adverse actions. Material facts began on July 26, 2003, when MacLean and all other FAMs received emergency notice of a terrorist hijacking threat for the same long distance aircraft used during the 9/11 attacks, but with a more ambitious scope also targeting European capitals and Pacific coast cities. Warnings came from the Saudi Arabia government, Federal Bureau of Investigation, State Department, and Department of Homeland Security (“DHS”). DHS’s suicide hijacking warning detailed a very specific plan to attack European, Australian and East Coast targets.. A98-99. The DHS Office of Intelligence & Analysis issued a May 18, 2006 report that confirmed the foiled hijack plot. A104. Federal homeland security offices went 5
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Page 3 and 4: TABLE OF CONTENTS ii Page CERTIFICA
Page 5 and 6: CONCLUSION ........................
Page 7 and 8: Coleman v. Dep't of the Treasury, 8
Page 9 and 10: Parsons v. Dep’t of Air Force, 70
Page 11 and 12: 2004 Congressional Research Service
Page 13 and 14: JURISDICTIONAL STATEMENT The Merit
Page 15: 8. Did the Board err by failing to
Page 19 and 20: He immediately called other agents
Page 21 and 22: 12, 202-03. That was consistent wit
Page 23 and 24: MacLean’s concerns were well-take
Page 25 and 26: “disgruntled,” ‘malicious,”
Page 27 and 28: investigation, . . . [and] reportin
Page 29 and 30: The ICE/OPR affidavit is the only i
Page 31 and 32: was carried out in less than a week
Page 33 and 34: could not remember if he had any im
Page 35 and 36: contradicted himself repeatedly, an
Page 37 and 38: Spithaler v. Office of Pers. Mgmt.,
Page 39 and 40: This regulation did not take effect
Page 41 and 42: of agency action must limit itself
Page 43 and 44: The Ninth circuit’s MacLean decis
Page 45 and 46: Because MacLean was free to steer b
Page 47 and 48: The AJ supported this judgment with
Page 49 and 50: Isolated inconsistencies cannot sup
Page 51 and 52: total abandonment for all long dist
Page 53 and 54: II. TERMINATION DOES NOT SERVE THE
Page 55 and 56: to pick the weak link between indiv
Page 57 and 58: effective civil service.” WPA §2
Page 59 and 60: elevant for actions that could caus
Page 61 and 62: of Health and Human Services, 7 M.S
Page 63 and 64: Nor was Terreri presented as eviden
Page 65 and 66: Senatorial Campaign Comm., 454 U.S.
Page 67 and 68:
protected is by voluntarily submitt
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Statutory Protection of Whistleblow
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Board did not have the authority to
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suggested that SSI information of g
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ADDENDUM
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