United States Court of Appeals for the Federal Circuit

liaisons with flight attendants; did not include attempts first to find more discreet
alternatives; were part of multiple offenses; or were made after TSA/FAMS
coverage was removed so that it was too late for agency corrective action before
the public was endangered.
Most significant for comparative discipline, no other Air Marshal has been
terminated for an unauthorized SSI disclosure. While the Board described
distinctions with other unauthorized releases that involved personal gain, it has not
adequately explained why his release, which did not, was so much more improper
that he had to be fired.
The primary difference with other SSI releases is that MacLean’s actions
exposed and led to correcting an agency mistake that prevented a government
breakdown so severe congressional hearings were announced immediately after its
exposure, and the consequences of silence would have risked a more ambitious
rerun of 9/11. For the AJ and Donzanti, that meant the offense was more notorious,
because it “undermined the public’s confidence in the Agency’s ability to prevent a
terrorist attack.” A66.
That premise is incompatible with the merit system. Every exposure of
government misconduct or mistakes undermines public confidence. However, the
WPA’s statement of purpose is definitive: “protecting employees who disclose
Government illegality, waste, and corruption is a major step toward a more
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