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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 44
effective civil service.” WPA §2(a)(2), 103 Stat. at 16 (1989), codified at 5 USC §1201 note (1994) Whether MacLean was technically covered by the WPA, he served the statute’s purpose of exposing and preventing what could have been a disastrous government breakdown. It undermines the merit system to terminate, rather than protect him. B. MacLean’s actions promoted the efficiency of the service, and terminating him undermines it. MacLean’s actions enhanced rather than undermined the efficiency of the service, the bottom line for progressive discipline. Crumbaker v. Dep’t of Labor, 7 M.S.P.R. 84 (1981) The AJ’s finding does not dispute that beyond speculation about vulnerability, the only adverse consequence of MacLean’s disclosure was the administrative burden of correcting a mistake. A58. The AJ, however, concluded that correcting it was “counter to the Agency’s interests” in efficiency, because it meant “excessive work to either correct that or make some decisions.” A59 It is a landmark policy judgment that preventing implementation of a mistaken plan to abandon the public during a confirmed, more ambitious 9/11 rerun undermines government efficiency. MacLean suggests the specific criteria to assess efficiency of the service should be whether an employee’s actions further or undermine the agency mission. In that context, it is undisputed that MacLean’s 45
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2011-3231 United States Court of Ap
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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 and 40: This regulation did not take effect
Page 41 and 42: of agency action must limit itself
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: to pick the weak link between indiv
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
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Page 96 and 97: A21
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