United States Court of Appeals for the Federal Circuit

disclosures, because all his training and prior notice indicated that SSI must be
marked. There were no markings or any other restrictions on the uncontrolled
message. Nor did any training or notice apply the criteria for inherent, unmarked
SSI status -- details about particular flights that could reveal agents’ identities or
uniquely vulnerable targets – to abdication of coverage for all long distance flights.
MacLean’s perspective was widely shared. Neither a supervisor nor the OIG
agent whom he first contacted to protest the order warned him or placed any
restrictions on communicating the message. The Agency’s Human Relations SAC
felt the basis for termination was uncertain, due to no markings. A senior official
responsible to prevent unauthorized disclosures concluded the information was not
SSI, and even the official who fired MacLean conceded he too would have been
uncertain under the circumstances.
The AJ and Board did not follow precedent for credibility determinations,
rejecting all MacLean’s testimony primarily on the basis of two statements from
irrelevant contexts. The Board emphasized he previously said “it did not matter”
whether the information was SSI. But the context was his confidential briefing to a
supervisor. Similarly, the “no remorse” and “no regrets” remark referred to a
television interview for which he is not charged.
By contrast, the Board did not make any credibility determinations for the
official who fired MacLean, although he was the Agency’s only witness,
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