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guidance is a standard as broad as TSA’s self-described agency mission: “The Transportation Security Administration protects the Nation’s transportation systems to ensure freedom of movement for people and commerce.” http://www.tsa.gov/who_we_are/mission.shtm. Even if mandatory agency regulations qualified as “law,” TSA’s own SSI rules were not sufficiently specific. As discussed above, while requiring marking of SSI status, there is no notice of consequences if information is not marked. Under the circumstances, even Donzanti who fired MacLean admitted he would have been uncertain. The confusion is not subjective to Messrs. Donzanti and MacLean. Sensitive Security Information, TSA’s pool of restricted information, has been so vague as to draw widespread controversy independent of the WPA. A 2004 Congressional Research Service report, http://www.fas.org/sgp/crs/RL32425.pdf, at 7, observed, “The lack of specificity of SSI regulations has raised questions about the withholding and eventual disclosure of transportation security information.” CRS explained that unlike classified information, “SSI regulations do not set forth specific justifications for protecting transportation security information.” Id., at 6 The report includes analogous findings and recommendations for restrictions on the audience: “For example, the vague and highly discretionary ‘need to know’ principle provides no set standards for determining who may receive SSI.” It 60
suggested that SSI information of generalized application should be available to the public.” Id., at 11 Again, this issue was briefed and ignored by the Board. The ATSA standard is not even sufficiently specific for constitutional standards against vagueness and over breadth. Depending on the circumstances, virtually anything could undermine aviation security. In that sense, it is remarkably similar to an analogous concept, “classifiable,” which applied the same broad principle to national security. In American Foreign Serv. Ass’n v. Garfinkel, 732 F. Supp. 13 (DDC 1990), the court rejected it on just such grounds. In particular, the “classifiable” concept at the time did not require markings or provide prior notice to an employee considering its release. That is why, as discussed earlier, since fy 1988 Congress annually has passed the “anti-gag statute” every year as an appropriations provision, prohibiting liability for disclosure of classified information unless it is specifically designated. 14 Despite statutory boundaries intended to be stricter than constitutional standards, the Board has created career- ending liability for disclosures of unmarked, unclassified information under any 14 As discussed earlier, through referencing the Intelligence Identities Protection Act of 1982 (50 U.S.C. §421 et seq.), the anti-gag statute prohibits elimination of WPA rights for making classified disclosures, unless it is specifically marked to provide whistleblowers prior notice. The definitions in §423 of the Intelligence Identities Protection Act require that information must be specifically designated as such to be properly classified. Congress reasoned that it would be unfair to strip whistleblowers of their rights unless they have prior notice. 61
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2011-3231 United States Court of Ap
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TABLE OF CONTENTS ii Page CERTIFICA
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CONCLUSION ........................
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Coleman v. Dep't of the Treasury, 8
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Parsons v. Dep’t of Air Force, 70
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2004 Congressional Research Service
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JURISDICTIONAL STATEMENT The Merit
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8. Did the Board err by failing to
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ief with the Board in support of Ma
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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 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: Board did not have the authority to
Page 75: ADDENDUM
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United States Court of Appeals for
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