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eleasing, in any form, sensitive, secure, or classified information to any unauthorized parsons groups, or associations.” A123. In every context of the record, without qualifier, exception or inconsistency, MacLean summarized an identical perspective for what he believed is organically SSI without a marking: information about specific flights that could identify individual undercover agents. That meant flight numbers, seating assignments, arrival gates, or other information that gave away the FAM’s identity. A244-50. On June 16, 2005, ICE/OPR submitted its Report of Investigation (“ROI”). There was no sense of urgency to act, and MacLean continued working unrestricted and uninterrupted. He stayed on flying active duty over four months between May 4, when he admitted to being a source for the July 29, 2003 MSNBC article, and September 13 when the Agency proposed removal and removed him from active duty on grounds that he – (1) appeared on NBC Nightly News without advance permission; (2) made other unauthorized media communications; and (3) revealed SSI to Meeks in his July 29, 2003 disclosure. A27-29. Although MacLean was placed on leave, for another five months he remained unrestricted from the Agency’s secure Internet portal, with unfettered access to all the Los Angeles field office’s SSI-marked mission schedules. Nor was there any action to suspend or remove MacLean’s security clearance. Donzanti said it would have taken too long, but when pressed conceded the action could be completed in days to a month, and 18
was carried out in less than a week with Terreri. A251-52, 221, 253-56. Most fundamentally, Donzanti did not believe there was a basis to restrict MacLean, who did “his job .... He didn’t cause any problems … [or] trouble for me.” A257. Nonetheless, on April 10, 2006 Donzanti sustained removal, based solely on the third charge. A30-32. Formally his basis was the notoriety of MacLean’s behavior and lack of remorse over the 2003 disclosure, 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. However, he testified at deposition that he would have fired MacLean even if the disclosure were legal. A261. Unlike ICE/OPR he also finalized the termination decision without asking whether MacLean had any remorse, knew the 2003 Meeks disclosure was unauthorized; intended to violate the law or would do it again. Donzanti further conceded that he did not consider – “exemplary” job performance; compare his choice with the range of penalties imposed for SSI releases; learn the nature of MacLean’s SSI training; communicate with anyone at ICE/OPR connected with the investigation; check with the Agency’s SSI expert whether MacLean had the basis for a good faith mistake; communicate with Employee Relations SAC Maria Del Carmen Perez; check with past supervisors for any history of security violations; impose or offer any instructions, guidance or additional training about 19
Page 1 and 2: 2011-3231 United States Court of Ap
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 and 16: 8. Did the Board err by failing to
Page 17 and 18: ief with the Board in support of Ma
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: The ICE/OPR affidavit is the only i
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
Page 69 and 70: Statutory Protection of Whistleblow
Page 71 and 72: Board did not have the authority to
Page 73 and 74: suggested that SSI information of g
Page 75: ADDENDUM
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