MacLean v. DHS: MSPB TSA Pre-hearing Statement for Administrative Judge omitting SSI question about supervisor

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE __________________________________________ ) ROBERT J. MACLEAN, ) DOCKET NUMBER: Appellant, ) SF-0752-06-0611-I-1 )

v. ) ) ADMINISTRATIVE

DEPARTMENT OF HOMELAND SECURITY, ) JUDGE: TRANSPORTATION SECURITY ) Franklin M. Kang ADMINISTRATION, ) Agency. ) ) September 1, 2009

AGENCY’S PRE-HEARING SUBMISSIONS1

In light of the Ninth Circuit’s Decision in MacLean v. Dep’t of Homeland

Security, 543 F.3d 1145 (Sept. 16, 2008) and the Opinion and Order of the Merit Systems

Protection Board in this case, 2009 MSPB 114 (June 22, 2009) (hereinafter Board

Opinion), the Agency respectfully submits that there remain only a few issues left to be

adjudicated by the Administrative Judge.

1. STATEMENT OF FACTS AND ISSUES

Issue 1: Whether the Agency established, by a preponderance of the evidence, that Appellant made an unauthorized disclosure of Sensitive Security Information.

Appellant admitted that on or about July 29, 2003, he disclosed to a journalist that

all RON [Remain Overnight] missions up to August 9, 2003 would be cancelled. AF,

Tab 4(J) at 11. The deciding official, Frank Donzanti, determined that the information

that Appellant disclosed constituted Sensitive Security Information (SSI) at the time of

Appellant’s disclosure. AF, Tab 4(A). When it became clear that Appellant was

challenging Donzanti’s determination that the disclosure was SSI, the Agency issued a 1 The Agency reserves the right to amend its Pre-hearing Submissions in the event that the Administrative Judge grants Appellant’s Motion to Compel and extends discovery.

P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 4 of 42

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Final Order that confirmed that the disclosed information constituted SSI. Appellant

appealed the Final Order to the Ninth Circuit, and the Ninth Circuit denied Appellant’s

appeal by finding that the Final Order was valid. MacLean, 543 F.3d 1145 (2008). The

full Board recently determined that the Final Order was not subject to review by the

MSPB. Board Opinion at p. 11, ¶ 18 (“We find that the agency can meet its burden of

proof on the charge [that the information that the appellant disclosed met the regulatory

definition of SSI] because where, as here, a federal court has determined that information

relevant to a Board appeal constituted SSI, that determination is binding in the Board

proceeding.”).

It is undisputed that Appellant did not obtain authorization from the Agency to

make this disclosure of Sensitive Security Information. AF, Tabs 4(A), 4(G), 4(J). It is

further undisputed that Appellant also did not have protection under the Whistleblower

Protection Act to make this disclosure of Sensitive Security Information. Board Opinion

at p. 19, ¶ 33. It is therefore undisputed that the Agency has established the charge that

Appellant made an unauthorized disclosure of SSI.

Issue 2: Whether the deciding official properly exercised managerial judgment by considering the relevant Douglas factors, such that the Agency’s penalty selection should be afforded deference? The Board will not disturb an Agency’s action if it is the maximum reasonable

penalty that may be imposed after considering all the relevant factors. See Davis v. Dep’t

of the Treasury, 8 M.S.P.R. 317 (1981). “It is well established that the selection of an

appropriate penalty is a matter committed to the sound discretion of the Agency.” James

v. U.S. Postal Serv., 35 M.S.P.R. 97 (1987). The Board’s function is not to displace

management’s responsibility for discipline but to ensure that managerial judgment has


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been properly exercised within tolerable limits of reasonableness. Id. (citing Douglas v.

Veterans’ Admin., 5 M.S.P.R. 280, 302 (1981)).

The Board must give due weight to the Agency’s primary discretion in

maintaining employee discipline and efficiency, recognizing that the Board’s function is

not to displace management’s responsibility but to ensure that managerial judgment has

been properly exercised. Harris v. U.S. Postal Service, 2005 MSPB LEXIS 7490, **13-

14 (2005). The Board will modify a penalty only when it finds that the Agency failed to

weigh the relevant factors or that it clearly exceeded the bounds of reasonableness in

determining the penalty. Id.

Here, the Agency’s penalty determination must be afforded deference because the

Agency reached its decision only after considering the relevant Douglas factors, and

because the removal is within the parameters of reasonableness for Appellant’s egregious

misconduct. The deciding official found that Appellant’s prior performance and length

of service did not warrant mitigating the penalty of removal. AF, Tab 4(A) at 2. Rather,

as a law enforcement officer, Appellant was held to a higher standard of accountability

and responsibility, and his unauthorized disclosure of SSI demonstrated that he did not

satisfy that higher standard. Id. Donzanti did not believe that Appellant could be

rehabilitated, and also, he lost confidence in Appellant. Id. Therefore, the Agency

properly weighed the relevant Douglas factors and rendered a reasonable penalty under

the specific circumstances of this case.

Issue 3: Whether Appellant has demonstrated a harmful error in the Agency’s application of its procedures, that is likely to have caused the Agency to reach a conclusion different from the one that it would have reached in the absence or cure of that error.


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In an attempt to show harmful error, Appellant cited to the Agency’s Policies and

Procedures for Safeguarding and Controlling Sensitive Security Information, which refers

to the applicable regulations. IF at Tab 4(N). The Agency’s policy sets forth a dual

responsibility, whereby a person who creates a record containing SSI must include a

protective marking and limited distribution statement and likewise, a person who receives

an unmarked record containing SSI must apply such a marking and inform the sender of

its omission. Id. at p. 2.

The Board defines harmful error as “error by the agency in the application of its

procedures that is likely to have caused the Agency to reach a conclusion different from

the one it would have reached in the absence or cure of the error.” 5 C.F.R. §

1201.56(c)(3) (emphasis added). The burden is upon Appellant to show, by preponderant

evidence, that the error was harmful, i.e., that it caused substantial harm or prejudice to

his rights. Id.

In this case, Appellant cannot show that an SSI marking would have likely

caused the Agency to reach a different conclusion about his misconduct. In his response

to the Notice of Proposed Removal, Appellant explained to the deciding official that he

made the disclosure because he believed that the safety of the flying public was

compromised. IF, Tab 4(D) at p. 10. During his deposition, Appellant further explained

that he would not have even cared if the text message was classified—he would have

made the disclosure regardless: “It did not matter to me whether it was confidential, law

enforcement sensitive, SSI or classified information. It was breaking the law and it was

endangering life.” Transcripts, excerpts attached hereto as Agency Hearing Ex. 8.

Therefore, the undisputed record establishes that whether the text message was marked as


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SSI would not have affected Appellant’s behavior or the Agency’s response to his

misconduct.

Issue 4: Whether Appellant has come forward with any evidence that his speech was a matter of public concern, which outweighed the governmental interest in protecting the non-disclosure of Sensitive Security Information.2

Appellant urges that his disclosure of Sensitive Security Information was a matter

of public concern, protected by the First Amendment. The Board has indicated that, on

this issue, it is the likely conclusion that the Agency had a significant interest in

protecting the information at issue in the charge, namely Sensitive Security Information.

Order, dated December 23, 2008 at pp. 7-8.

To evaluate this affirmative defense, the Board balances the individual and

societal interests that are served when employees speak on matters of public concern with

the needs of government employers to attempt to perform their important public

functions. See Garcetti v. Ceballos, 547 U.S. 410, 420 (2006); Pickering v. Board of

Educ., 391 U.S. 563 (1968); Smith v. Dep’t of Transp., 106 M.S.P.R. 59 at ¶ 46 (2007).

The courts and the Board expressly have recognized, however, that employees’ free

speech rights must be balanced against the need of government agencies to exercise

“wide latitude in managing their offices, without intrusive oversight by the judiciary in

the name of the First Amendment.” Mings v. Dep’t of Justice, 813 F.2d 384, 387 (Fed.

Cir. 1987); Smith, 106 M.S.P.R. 59 at ¶ 46.

Speech that is related to any matter of political, social, or other concern to the

community may be considered a matter of public concern. Connick v. Meyers, 461 U.S. 2 Appellant seems poised to make a new argument, that his union membership and leadership role in the Federal Air Marshal chapter of the Federal Law Enforcement Officers Association (FLEOA) was the basis of his removal. In light of the charge which has been sustained, it is apparent that Appellant was removed for his action of disclosing SSI, rather than for his speech or association.


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138, 146 (1983). In this case, however, the Agency submits that while FAM coverage for

Remain Overnight missions may be a matter of public concern – generally speaking – the

exact nature of any particular deployment or mission is not. As fully recognized by the

Board, such is Sensitive Security Information by regulatory definition and can only be

learned by those with a regulatory need to know. Board Opinion at p. 8, ¶ 13.

Moreover, the state interest in protecting against SSI disclosures is evident from

the face of the statute authorizing the Agency’s administrator to prescribe regulations

prohibiting the disclosure SSI. Board Opinion at p. 6, ¶ 10. The specific state interest in

this case, maintaining the confidentiality of FAMS deployment was harmed as soon as

Appellant made his disclosure to a journalist. Should the Agency or any other

governmental employer be prohibited from imposing discipline for unauthorized SSI

disclosures, there would be no deterrence whatsoever. By analogy, the Agency cites to

cases where it has been recognized that, “there is no First Amendment right to have

confidential, sealed or classified information leaked to the public.” United States v.

Koubriti, 307 F. Supp. 2d. 891, 900 (E.D. Mich. 2004); also see Snepp v. United States,

444 U.S. 507, 508-09 & n.3 (1980) (sustaining restrictions on the publication of

confidential information by former CIA employee, regardless of whether the materials

were actually classified); United States v. Aguilar, 515 U.S. 593, 606 (1993) (“As to one

who voluntarily assumed a duty of confidentiality, governmental restrictions on

disclosure are not subject to the same stringent standards that would apply to efforts to

impose restrictions on unwilling members of the public.”); Am. Library Ass’n v. Faurer,

631 F. Supp. 416 (D.C. 1986) (no First Amendment right exists where disclosure of


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classified information would possibly endanger the national security, even though the

information had been previously in the public domain).

When Appellant spoke to that news reporter and disclosed SSI, he single-

handedly exposed the nation to another terrorist attack—by broadcasting exactly which

flights would be unprotected by an on-board Federal air marshal. As a result of

Appellant’s action, the Under Secretary effectively lost the discretion to determine when

and where to deploy Federal Air Marshals. Therefore, applying the balancing test, the

governmental interests overwhelmingly outweigh any free speech interest that Appellant

may enjoy.

2. LIST OF ALL AGREED UPON MATERIAL FACTS The Agency proposes that the following fact may be stipulated to between the

parties:

A. That for the July 29, 2003 article, Appellant informed reporter Brock Meeks that all Las Vegas Federal Air Marshals were sent a text message to their government-issued mobile phones that all RON [Remain Overnight] missions up to August 9 would be canceled.3

The parties, however, have only agreed upon the following fact:

B. That the subject text message did not include any SSI marking or limited distribution statement.

3. LIST OF WITNESSES AND EXPECTED TESTIMONY

A. Frank Donzanti: As the acting Special Agent in Charge of the Los Angeles

Field Office, Donzanti was the deciding official in this matter. He will testify as to the disciplinary decision of removal, and that Appellant knew or should have known that the information disclosed met the regulatory definition of Sensitive Security Information.

B. Complainant: The Agency will call Appellant as part of its case-in-chief, to

testify that he engaged in the misconduct and that he would have engaged in

3See Apellant’s sworn affidavit at Tab 4(J) at 11. Also, MacLean, 543 F.3d at 1148.


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that same misconduct regardless of the SSI nature of the information disclosed.

4. LIST OF EXHIBITS Number Description 1 Delegation Order

2 Except of Standard Operating Procedures

3 Federal Air Marshal Service Directive re Employee

Responsibilities and Conduct

4 Vacancy Announcement Number

5 Employee Performance Agreement for performance period November 17, 2002 to November 16, 2003

6 Performance Agreement for Other Employees for performance period May 19, 2003 to September 30, 2003

7 Employee Performance Agreement for performance period May 18, 2003 to September 30, 2003

8 Excerpts of Appellant’s Deposition

Respectfully Submitted, September 1, 2009 By: ____/s/_________________________

Eileen Dizon Calaguas Agency Representative


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CERTIFICATE OF SERVICE

I certify that the attached Pre-Hearing Submissions and accompanying Exhibits were sent as indicated this 1st day of September 2009 to each of the following: Appellant Via E-file Robert J. MacLean Appellant’s Representative Via E-file Peter H. Noone, Esq. Patrick Tinsley Avery, Dooley, Post & Avery, LLP Board Via E-file Hon. Franklin Kang Administrative Judge Western Regional Office ____________/s/______________________ Eileen Dizon Calaguas Attorney-Advisor, Office of Chief Counsel Transportation Security Administration San Francisco Mission Support Center 450 Golden Gate Avenue, Suite 1-5246

P.O. Box 36018 San Francisco, CA 94066 (415) 503-4602 (office) (415) 554-9501 (facsimile)

[email protected]


Agency Hearing Ex. 1 MacLean v. DHSP leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 13 of 42

Agency Hearing Ex. 2 MacLean v. DHS, pg. 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 14 of 42












Agency Hearing Ex. 4 MacLean v. DHS, page 1P leading N umber : 2009013875 S ubmission date : 2009-09-01 20:19:49 C onfirmation N umber: 106281829 page 26 of 42
















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MacLean v. DHS: MSPB TSA Pre-hearing Statement for Administrative Judge omitting SSI question about supervisor