United States Court of Appeals for the Federal Circuit

unauthorized disclosures after receiving the 2005 ICE/OPR report until MacLean’s
April 11, 2006 removal; restrict MacLean’s duties during the June-October
interim; take any actions to restrict his security clearance or access; or try to place
him on administrative leave or restricted duty. A221-4; 254-56, 261-71.
Donzanti agreed, but provided no weight that MacLean was a first time
offender with an otherwise clean record; did not act maliciously; had good
intentions; did not engage in any unauthorized disclosures during the two and a
half years under his supervision; that the Agency required SSI marking, while the
text was sent in an unprotected, uncontrolled manner; it was not in a secure,
controlled environment as required for SSI; 4 and that under the circumstances he
too would have questioned whether the Agency wanted to treat the message as SSI.
A196, 272, 197, 273-77.
Nor did Donzanti consider mitigating factors. A265. At hearing he only
discussed one, testifying that he didn’t need to consider SSI markings as
mitigating, but also agreeing that they are important and should be applied. A278,
228.
In fact, Donzanti merely formalized a decision he did not make. It came
from headquarters. He conceded not drafting the final decision he signed, and
4 In fact, the agency lost the message and never has been able to produce it for the
record.
20