United States Court of Appeals for the Federal Circuit

nondisclosure form; and 2) his training had made it clear that it was improper to
disclose information about specific flights. A23-4. 5
A. The Board erred by sustaining termination based on a charge not
levied.
The Agency’s notice of proposed removal, A4-5, charged that MacLean
violated 49 CFR Section 1520.5(b)(8) (ii) (2004), which bars disclosure of SSI, in
relevant part:
1520.5(b) Except as otherwise provided in writing by
TSA in the interest of public safety or in furtherance of
transportation security, the following information, and
records containing such information, constitute SSI:
* * *
(8) Security measures. Specific details of aviation,
maritime, or rail transportation security measures, both
operational and technical, whether applied directly by the
Federal government or another person, including -
* * *
(ii) Information concerning deployments, numbers, and
operations of Coast Guard personnel engaged in maritime
security duties and Federal Air Marshals, to the extent it
is not classified national security information...”.
5 Curiously, the Board declined to rule whether MacLean intended to violate the
law, explaining that “the outcome of this case does not turn on whether MacLean
credibly testified that he did not know the RON directive was SSI when he
disclosed it to the MSNBC reporter.” A22. As discussed below, however, intent is
the primary issue for most Douglas factors considered, one of which literally
examines whether misconduct was intentional or inadvertent. Douglas v. Veterans
Admin., 5 M.S.P.R. 280, 305-06 (1981)
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