United States Court of Appeals for the Federal Circuit

Like every other audience – public, private, governmental, or
nongovernmental – MacLean told ICE/OPR that while all Las Vegas FAMS
received the affidavit, it was distributed nationally. Being stationed in Las Vegas
he could only witness the message sent to FAMs there, not all other messages sent
nationally. But Supervisory FAM Scoffield and others across the country
confirmed for MacLean that the plan was national.
Under the Freedom of Information Act, MacLean also obtained a transcript
of his oral responses to the ICE/OPR investigator’s questions. He appeals the
Board’s rejection of his motion to accept the transcript as new evidence and moves
this court to reopen and supplement the record with it. 2
2 The Board provided two grounds – 1) it was previously available; and 2) whether
MacLean believed the text message was SSI would not change its findings due to
strict liability for releases. A22. The transcript was neither material nor relevant,
however, until the AJ rewrote the history of MacLean’s ICE/OPR interview in
ways he cited as dispositive for findings on credibility and penalty.
As will be discussed below, the AJ rejected all MacLean’s credibility based
on an alleged inconsistency whether the message was sent nationally or only to Las
Vegas. This was not raised before hearing, and only in brief passing at hearing.
Second, while there may be strict liability for release of SSI, the penalty is
discretionary.
Further, the AJ and Board’s primary basis to approve termination was that
MacLean declared no remorse or regret for the 2003 Meeks disclosures. The
transcript, however, demonstrates that the remark concerned his 2004 television
appearance, for which he is not charged with misconduct.
Since neither issue was discussed at hearing. It serves the interest of justice
to establish an accurate record for these subjective judgments based on false
premises. See Coleman v. Dep't of the Treasury, 88 M.S.P.R. 266, 268 (M.S.P.B.
2001), and Fleming v. Dep't of Labor, 97 M.S.P.R. 341, 344 (M.S.P.B. 2004)
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