United States Court of Appeals for the Federal Circuit

More documents

Recommendations

Info

ecords containing such information constitute sensitive security information: * * * (j) Specific details of aviation security measures whether applied directly by the TSA or entities subject to the rules listed in Section 1520.59a)(1) through (6). This includes, but is not limited to, information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations. Section 1520.7(j) (2003) restricts SSI to “specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” [Emphasis added.] MacLean’s July 2003 disclosure summarized a text message announcing that -- “all RON (Remain Overnight) missions ... up to August 9, would be cancelled.” MacLean, 543 F.3d at 1149. Whether this text constitutes disclosure of “specific” deployments under the regulation is a mixed question of fact and law to be decided by the Agency deciding official or the Board. The record demonstrates, however, that beyond the Board’s passing reference, it did not consider 1520.7 when deciding MacLean’s fate. The AJ relied on other bases not mentioned by the deciding official, without reference to §1520.7. Nor did the Board support its observation that that the rules were substantively equivalent, or rely on any other authority (including those the AJ referenced), beyond 1520.7(j) to sustain termination. In SEC v. Chenery, 332 U.S. 194, 196 (1947), the Supreme Court established a “simple but fundamental rule of administrative law”: Judicial review 28
of agency action must limit itself to the basis on which the agency acted. The reviewing court cannot itself substitute a more satisfying rationale for the one the agency has chosen. When an agency gives the wrong reason for its action, an appellate body “...cannot do service for an administrative judgment...(a)n appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” 318 U.S. at 87 (1947) Chenery applies when the “reviewing body is an administrative tribunal rather than a court.” Horne v. MSPB, 684 F. 2d 155, 157 (D.C. Cir. 1982) In Horne, the Court held that the MSPB “should not be in the business of affirming administrative decisions based on how an agency might have acted if it had followed the proper procedures. The role of review is to evaluate agency discretion as it has been exercised.” Id. at 157- 158. This Circuit follows Chenery. The Board may review the employing agency’s adverse action solely on the grounds the Agency invokes, and may not substitute what it considers to be a better basis. O’Keefe v. USPS, 318 F.3d 1310, 1315 (Fed. Cir. 2002); Gottlieb v. VA, 39 M.S.P.R. 606, 609 (1989) Here, deciding official Donzanti impermissibly relied on a rule to judge MacLean’s behavior that did not exist until years later. The Board’s purported cure wholly ignored both the Agency and AJ’s precise grounds by substituting what it considered an acceptable basis, thus avoiding retroactivity. This machination runs smack into Chenery. The 29
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 and 30: The ICE/OPR affidavit is the only i
Page 31 and 32: was carried out in less than a week
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: This regulation did not take effect
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
Page 86 and 87: A11
Page 88 and 89: A13
Page 90 and 91:
A15
Page 92 and 93:
A17
Page 94 and 95:
A19
Page 96 and 97:
A21
Page 98 and 99:
A23
Page 100 and 101:
A25
Page 102 and 103:
A33
Page 104 and 105:
A35
Page 106 and 107:
A37
Page 108 and 109:
A39
Page 110 and 111:
A41
Page 112 and 113:
A43
Page 114 and 115:
A45
Page 116 and 117:
A47
Page 118 and 119:
A49
Page 120 and 121:
A51
Page 122 and 123:
A53
Page 124 and 125:
A55
Page 126 and 127:
A57
Page 128 and 129:
A59
Page 130 and 131:
A61
Page 132 and 133:
A63
Page 134 and 135:
A65
Page 136 and 137:
A67
Page 138 and 139:
A69
Page 140 and 141:
A71
Page 142 and 143:
United States Court of Appeals for
show all

United States Court of Appeals for the Federal Circuit

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?