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RESPONDENT'S BRIEF (P) Case: 11-3231 Document: 33 Page: 2 Filed:WEST/CRS 05/30/2012
2011-3231
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
ROBERT J. MACLEAN,
Petitioner,
We
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
i i Petition for Review of the Merit Systems Protection Board decision in Case No. SF-0752-06-0611-I-2. i ,
BRIEF AND SUPPLEMENTAL APPENDIX FOR RESPONDENT, DEPARTMENT OF HOMELAND SECURITY
STUART F. DELERY Acting Assistant Attorney General
JEANNE E. DAVIDSON fllfP_. -i_roi_ Director U_eOu_ o_ ter-_ TODD M. HUGHES 30 701l Deputy Director
MICHAEL P. GOODMAN Trial Attorney U.S. Department of Justice Civil Division PO Box 480; Ben Franklin Station Washington, DC 20044 Tel: (202) 305-2087
May 30, 2012 Attorneys for Respondent Case: 11-3231 Document: 33 Page: 3 Filed: 05/30/2012
TABLE OF CONTENTS
TABLE OF CONTENTS ...... i
TABLE OF AUTHORITIES ...... iii
STATEMENT OF RELATED CASES ...... vi
STATEMENT OF THE ISSUES ...... 1
STATEMENT OF THE CASE ...... 2
I. Nature Of The Case ...... 2
II. Course Of Proceedings Below ...... 2
STATEMENT OF THE FACTS ...... 8
I. Statutory and Regulatory Background of Sensitive Security Information ...... 8
II. Air Marshals on Planes ...... 11
III. Relevant Factual Background ...... 12
SUMMARY OF ARGUMENT ...... 15
ARGUMENT ...... 18
I. Standard Of Review ...... 18
II. Substantial Evidence Supports the Board's Finding That Mr. MacLean Disclosed SSI ...... 19
A. The Information That Mr. MacLean Disclosed is SSI ...... 19
B. Mr. MacLean Should Have Known That The Information He Disclosed Was SSI And That He Could Not Disclose SSI; It Is Irrelevant Whether He Had A "Good Faith Basis" Otherwise ...... 25 Case: 11-3231 Document: 33 Page: 4 Filed: 05/30/2012
III. The Board Did Not Abuse its Discretion in Finding That Mr. MacLean's Termination Serves the Efficiency of the Service...... 30
IV. Substantial Evidence Supports the Board's Finding That Mr. MacLean Was Not Removed For His FLEOA Activities ...... 40
V. Mr. MacLean's Removal Does Not Violate The Whistleblower Protection Act ...... :...... 43
CONCLUSION ...... 50
SUPPLEMENTAL APPENDIX
SSI Policies and Procedures ...... SAI-13
Mr. MacLean's Acceptance of Conditions of Employment ...... SA 14-16
Report of Investigation and Attachments ...... SA 17-43
Final Order on SSI ...... SA44-45
Proposal to Remove ...... SA46-48
Notice of Removal ...... SA49-51
MacLean's Response to Proposal to Remove ...... SA52-64
MSPB Hearing Transcript Excerpts..: ...... SA65-69
ii Case: 11-3231 Document: 33 Page: 5 Filed: 05/30/2012
TABLE OF AUTHORITIES
CASES
Brennan v. DepartmentofHealthandHuman Servs., 787 F.2d 1559 (Fed. Cir. 1986) ...... 20
Brewer v. United States Postal Service, 47 F.2d 1093 (Ct. C1.1981), cert. denied, 454 U.S. 1144 (1982) ...... 18
Cheeseman v. Office ofPersonnelManagement, 791F.2d 138 (Fed. Cir. 1986) ...... 18
Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 (1938) ...... 18
Cumin v. Office ofPers. Mgm_, 846 F.2d 1373 (Fed. Cir. 1988) ...... _...... 40
Douglas v. Veterans' Admin., 5 M.S.P.R. 280 (1981) ...... 15, 34
Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006) ...... 20
Lachance v. Merit Sys. Prot. Bd., 147 F.3d 1367 (Fed. Cir. 1998) ...... 20
MacLean v. Dep 't of Homeland Sec., 543 F.3d 1145 (9th Cir. 2008) ...... 2-3, 13, 20, 22-23
MacLean v. Dep 't of Homeland Sec., 112 M.S.P.R. 4 (2009) (MacLean I) ...... 3, 44-45
Parker v. United States Postal Service, 819 F.2d 1113 (Fed. Cir. 1987) ...... 18
Sandel v. Office of Personnel Management, 8 F.3d 1184 (Fed. Cir. 1994) ...... 18
iii Case: 11-3231 Document: 33 Page: 6 Filed: 05/30/2012
Spezzaferro v. FAA, 807 F.2d 169 (Fed. Cir. 1986) ...... 40
Welshans v. U.S. Postal Serv., 550 F.3d 1100 (Fed. Cir. 2008) ...... 19
STATUTES AND REGULATIONS
5 U.S.C. § 2302 (Whistleblower Protection Act (WPA)) ...... 6, 43-50
5 U.S.C. § 7703 ...... 18
49 U.S.C. § 114 ...... 9, 17, 45
49 U.S.C. § 40119 ...... 9-10, 17, 45-47
49 U.S.C. § 44917 (Aviation and Transportation Security Act (ATSA)) ...... 12
Pub. L. No. 93-366, see. 202, 316, 88 Stat. 409, 415-17 (1974) ...... 8
Pub. L. No. 107-71, § 101, 115 Stat. 597, 597-604 (2001) (Aviation and Transportation Security Act or ATSA) ...... 8-9
Pub. L. No. 107-296, 116 Stat. 2135 (Homeland Security Act of 2002) ...... 9, 17
Pub. L. No. 110-161, Div. E, § 568(a), 121 Stat. 1844, 2092 (Dec. 26, 2007) (Consolidated Appropriations Act, 2008) ...... 9, 17
49 C.F.R. Pt. 1520 ...... 9
49 C.F.R. § 1500.3 ...... _...... 9
49 C.F.R. § 1520.5 ...... 11
49 C.F.R. § 1520.7 (2002) ...... 3, 11, 19-22, 34
iv Case: 11-3231 Document: 33 Page: 7 Filed: 05/30/2012
STATEMENT OF RELATED CASES
Pursuant to Fed. Cir. 47.5, counsel for respondent respectfully informs the
Court that MacLean v. Dep 't of HomelandSec., 543 F.3d 1145 (9th Cir. 2008), is related to this appeal. Respondent is not aware of any other cases pending in this
or any other court that will directly affect or be directly affected by this Court's decision in this case.
V Case: 11-3231 Document: 33 Page: 8 Filed: 05/30/2012
No. 2011-3231
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
ROBERT J. MACLEAN,
Petitioner,
V.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Petition for Review of the Merit Systems Protection Board decision in Case No. SF-0752-06-0611-I-2.
STATEMENT OF THE ISSUES
° Is the Merit Systems Protection Board's finding that Mr. MacLean engaged in an unauthorized disclosure of Sensitive Security Information (SSI) supported by substantial evidence?
, Did the Board abuse its discretion in finding that Mr. MacLean's removal improves the efficiency of the service?
. Is the Board's finding that Mr. MacLean was not removed for his membership in a labor group supported by substantial evidence?
. Does Mr. MacLean's removal violate the Whistleblower Protection Act? Case: 11-3231 Document: 33 Page: 9 Filed: 05/30/2012
STATEMENT OF THE CASE
I. Nature Of The Case
This case involves the Transportation Security Agency's (TSA) removal of a
Federal Air Marshal for disclosing Sensitive Security Information to a reporter. As one judge on the Ninth Circuit Court of Appeals described his actions, Mr.
MacLean told "Mr. Osama bin Laden that there will be no air marshals anywhere on any of our airplanes for the next 10 days. ''1
II. Course Of Proceedings Below
The TSA removed Mr. MacLean for his disclosure of SSI effective April I l,
2006. A36. Mr. MacLean first appealed that decision to the MSPB the same month. Mr. MacLean then requested that his Board appeal be dismissed without prejudice pending his related challenge then proceeding before the Ninth Circuit
Court of Appeals. A37; see also MacLean v. Dep't of Homeland Sec., 543 F.3d
1145, 1149 (9th Cir. 2008). The MSPB appeal was thus dismissed on October 5,
2006. A33.
In the related proceeding before the Ninth Circuit, Mr. MacLean challenged the TSA's determination that the information he had disclosed was, in fact, SSI.
MacLean, 543 F.3d at 1150. That court found that it was SSI, as it contained
1 http://www.ca9.uscourts.gov/media/view subpage.php?pk id=O000000190 (relevant excerpt at 4:51- 6:09 of audio file).
2 Case: 11-3231 Document: 33 Page: 10 Filed: 05/30/2012
'specific details of aviation security measures' regarding 'deployment and missions' of FederalAir Marshals." ld. (citing 49 C.F.R. § 1520.70) (2002)).
On October 15, 2008, Mr. MacLean re-filed his appeal at the Board. A38.
Thereatter, the Administrative Judge certified for the full Board the questions of whether the Board may review the Ninth Circuit's determination that Mr.
MacLean's disclosure was SSI and whether the fact that the TSA's order designating that information as SSI was issued after Mr. MacLean's removal affects that issue. A39. The full Board also considered whether a disclosure of
SSI can be a disclosure protected by the Whistleblower Protection Act (WPA).
A39. With respect to the first two questions, the Board held that it does not possess jurisdiction to reconsider the Ninth Circuit's decision that Mr. MacLean's disclosure was SSI, and that the timing of the TSA's SSI determination does not alter that conclusion. A39; MacLean v. Dep 't of Homeland Sec., 112 M.S.P.R. 4
(2009) (MacLean 0. With respect to the third question, the Board held that a disclosure of SSI, as defined by regulation, cannot give rise to whistleblower protection. A39.
After the full Board's interlocutory decision was issued, the administrative judge assigned to the case held a hearing and the record was subsequently closed.
A40. Three months after the record was closed, Mr. MacLean moved to reopen the record in order to (1) add evidence about subsequent violations of S SI regulations Case: 11-3231 Document: 33 Page: 11 Filed: 05/30/2012
that occurred after Mr. MacLean's removal, and (2) to addressMr. MacLean's allegation of improper conduct on the part of the official who had removedhim.
A40-41.
The administrative judge issued an initial decision in the caseon May 12,
2010. The administrative judge first denied Mr. MacLean's motion to re-open the record. The administrative judge explained that he deniedthe motion because subsequentbreachesof SSI procedures do not affect whether Mr. MacLean's charged misconduct occurred and becauseMr. MacLean had failed to demonstrate that he could not have inquired about the alleged improper conduct on the part of the deciding official when the record was still open. A42-43.
The administrative judge then addressedthe merits of TSA's decision to remove Mr. MacLean for disclosing SSI. The administrative judge first found that
Mr. MacLean committed the act for which he was charged: disclosing SSI to a reporter. The administrative judge specifically found that "the information disclosed by the appellant to the reporter on July 29, 2003 was SSI," and found Mr.
MacLean's contention that he did not think the information was SSI to be not credible. A51, 64. The administrative judge also found "to the extent the appellant now denies that he conveyed the information specified above involving
RON missions out of Las Vegas, I find that the appellant's testimony to this effect is not credible." A50.
4 Case: 11-3231 Document: 33 Page: 12 Filed: 05/30/2012
The administrative judge then addressedMr. MacLean's two affirmative
defenses,that TSA was actually discriminating against him on the basis of his
•involvement in the FederalLaw Enforcement Officers Association (FLEOA) and
that his removal is prohibited by the First Amendment. A51-60. The
administrative judge first found that Mr. MacLean failed to show that the agency
discriminated against him basedupon his membership in FLEOA, noting that
instead"the appellant's testimony at hearing reflects that his unauthorized
appearanceon a national network news program, rather than his FLEOA activities,
was the catalyst [for] the [Office of Professional Responsibility's] investigative
actions," and that "the investigative actions did not occur until approximately 22
months after he began organizing and leading the chapter." A55. With respect to
Mr. MacLean's defensebasedupon the First Amendment, the administrative judge
recognized that while the disclosure of SSI in this caseis a legitimate matter of
public concern, Mr. MacLean's actions createda vulnerability that undermined the
efficiency of the service. The administrative judge concluded that in this casethe
agency's interest in maintaining the efficiency of the service outweighs Mr.
MacLean's interest asa citizen. A56, 60. Finally, the administrative judge found
that the TSA had considered all of the relevant factors and exercised management
discretion in assigning a reasonablepenalty for Mr. MacLean's misconduct. A61-
72. Case: 11-3231 Document: 33 Page: 13 Filed: 05/30/2012
Following a petition for review, the full Board issued a final decision affirming, asmodified, the administrative judge's initial decision. A1-26. The
Board first rejected Mr. MacLean's argument that the administrative judge should have considered whether he had a "good faith belief" that he was permitted to disclose the information he revealed to a reporter. The Board also consideredand rejected Mr. MacLean's assertion that the administrative judge erred in concluding that Mr. MacLean was not credible. Moreover, the Board found that Mr.
MacLean's subjective view of whether the information he had disclosed was SSI is irrelevant, asTSA's charge contains no element of intent. A8.
The full Board then considered Mr. MacLean's contention, sharedby two
Congressmenwho filed a brief as amici, that the Board's earlier, interlocutory, decision was incorrect in holding that Mr. MacLean's disclosure of SSI is not protected whistleblowing. A9 (citing 5 U.S.C. § 2302(b)(8)(A)). The Board again rejected Mr. MacLean's argument, and in so doing, modified its earlier decision to make clear the narrowness of its legal holding. A 10. The Board explained, "we find that the appellant's disclosure of SSI was 'specifically prohibited by law' because the regulation that he violated when he disclosed information about FAM deployments was promulgated pursuant to an explicit Congressional mandate that required TSA to prohibit such disclosures." A10. The Board also explained,
We would share some of the concerns expressed by Representatives Kucinich and Maloney if MacLean I
6 Case: 11-3231 Document: 33 Page: 14 Filed: 05/30/2012
were given the broad sweep that they address in their amicus brief. As we have explained above, however, we limit our holding here and the reach of MacLean I in order to give effect to both the WPA and Congress's express intent to prohibit the public disclosure of aviation security information. The appellant's disclosure of FAM deployment information was not protected by the WPA because it was prohibited by SSI regulations issued by TSA in compliance with an express statutory requirement of Congress to issue regulations 'prohibiting disclosure of information obtained or developed in carrying our security' if, in TSA's view, 'disclosing the information' would 'be detrimental to the safety of passengers in air transportation.'
A12.
Like the administrative judge had, the full Board then considered, and rejected, Mr. MacLean's affirmative defenses: that his removal violated the First
Amendment and that it was actually pretext for a removal based upon his FLEOA activities, With respect to the First Amendment claim, the Board explained that
"the appellant's interest in commenting on a matter of public concern, i.e., the
2003 directive regarding overnight missions, was outweighed by the interest of the agency, as employer, in promoting aviation security." A14. With respect to Mr.
MacLean's assertion that his removal was actually for FLEOA activities, the Board found that "there is no direct evidence that the agency retaliated or discriminated against him for engaging in FLEOA activities when it removed him from employment." A 17.
7 Case: 11-3231 Document: 33 Page: 15 Filed: 05/30/2012
The full Board then consideredwhether the TSA had treated Mr. MacLean more harshly than other similarly situated employees,and concluded that it did not.
The Board noted that two of the comparatorsthat Mr. MacLean contendedreleased
SSI ashe did actually engagedin much less seriousconduct involving only a few individuals. A18. The Board also explained that Mr. MacLean's demonstrable lack of remorse about his disclosure of SSI is asignificant factor distinguishing his disclosure of SSI from all of the other casesMr. MacLean presented. A19. After finding that the deciding official considered all of the relevant factors, the full
Board found that the TSA's decision to remove Mr. MacLean was reasonableand sustained that decision. A23-25.
Mr. MacLean timely appealedto this Court.
STATEMENT OF THE FACTS
I. Statutory and Regulatory Background of Sensitive Security Information
Since 1974, Congress has required the federal agency responsible for civil aviation security to issue regulations prohibiting the disclosure of certain information in the interest of protecting air transportation. See Pub. L. No. 93-366, sec. 202, 316, 88 Stat. 409, 415-17 (1974) (-formerly codified at 49 U.S.C. App.
§ 1357(d)(2)(C)). The Federal Aviation Administration (FAA) initially enforced this statutory mandate; following the events of September 11, 2001, Congress transferred the authority to the newly created TSA. See Pub. L. No. 107-71, § 101,
8 Case: 11-3231 Document: 33 Page: 16 Filed: 05/30/2012
115 Stat.597, 597-604 (2001) (Aviation and Transportation Security Act or
ATSA). As part of this obligation, the Under Secretaryof TSA was directed to
"prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security.., if the Under Secretary decides that disclosing the information would.., be detrimental to the security of transportation.''2 49 U.S.C. § 114(r) (formerly (s))3;seealso 49 U.S.C.
§ 40119(b)(1)(C) (2002) (according similar authority to the Department of
Transportation). 3 On February 22, 2002, the FA.A and TSA published a final rule transferring the bulk of FAA's civil aviation security rules to TSA. See generally
49 C.F.R. Pt. 1520. 4
2 As noted above, the Under Secretary along with TSA itself was originally a part of the Department of Transportation. 49 U.S.C. § 114(a), (b)(1) (ATSA). By •January 2003, TSA's functions, as well as the Under Secretary's, were transferred to the Department of Homeland Security pursuant to section 403(2) of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified at 6 U.S.C. § 203(2)). The Under Secretary is now known as the Administrator of TSA. See 49 C.F.R. § 1500.3. Because Federal statutes continue to refer to the head of TSA as the "Under Secretary," this brief follows that convention.
3 Subsection (s) of section 114 was redesignated as subsection (r) by the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. E, § 568(a), 121 Stat. 1844, 2092 (Dec. 26, 2007).
4 The 1994 version of 49 U.S.C. § 40119 stated, in pertinent part:
(b) DISCLOSURE. (1) Notwithstanding section 552 of title 5, the [FAA] Administrator shall prescribe regulations prohibiting disclosure of information obtained or developed in carrying out security or 9 Case: 11-3231 Document: 33 Page: 17 Filed: 05/30/2012
By these regulations, the Under Secretary defined certain types of
information to be SSI and limited the disclosure of that'information to a narrow set of circumstances. Id. As relevant here, the required regulations defined as SSI:
[s]pecific details of aviation security measures.., includ[ing], but [] not limited to,
information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations. 49 C.F.R. § 1520.70)
(2002). Any such information--and any records containing such information--
qualify as SSI unless the Under Secretary provides otherwise in writing to the
contrary. 49 C.F.R. § 1520.7, now found at 49 C.F.R. § 1520.5.
research and development activities under section 44501(a) or (c), 44502(a)(I) or (3), (b), or (c), 44504, 44505, 44507, 44508, 44511, 44512, 44513, 44901, 44903(a), (b), (c), or (e), 44905, 44912, 44935, 44936, or 44938(a) or (b) of this title /f the Administrator decides disclosing the information would -- (A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the safety of passengers in air transportation. (2) Paragraph (1) of this subsection does not authorize information to be withheld from a committee of Congress authorized to have the information.
Emphasis added. 49 U.S.C. § 40119(b)(1)(C) (2012) now refers to information "detrimental to transportation safety" as opposed to "detrimental to the safety of passengers in air transportation."
10 Case: 11-3231 Document: 33 Page: 18 Filed: 05/30/2012
In addition to defining Sensitive Security Information, the regulations also determine the instancesin which SSI may be permissibly disclosed. In particular, both the regulations and TSA policy create a duty upon certain individuals to protect SSI; those individuals are prohibited from disseminating SSI except to personswith a "need to know" and are required to report any unauthorized release.
See SA1-135; 49 C.F.R. Part 1520. Disclosure by covered persons in violation of the regulations is punishable by civil penalties or enforcement proceedings, as well as prohibited by TSA policy. Id.
II. Air Marshals on planes
Federal Air Marshals (FAM) are the primary operational employees of the
Federal Air Marshal Service, which functions under the direction of TSA. Initially created in late 1970 as the Customs Air Security Officers Program within the
Federal Aviation Authority and more familiarly known as the "Sky Marshal
Program," Customs Air Security officers were placed onAmerican aircraft dressed as typical passengers, and flying armed and ready to thwart any attempted hijackings. 6 Operations ceased in June 1974, but after the hijacking of TSA Flight
5 As permitted by Rule 30(t) of the rules of this Court, we have attached a supplemental appendix to this brief.
6 A description of the history of the Federal Air Marshal Service may be found at http://www.tsa.gov/lawenforcement/mission/index.shtm.
11 Case: 11-3231 Document: 33 Page: 19 Filed: 05/30/2012
847 in 1985, the International Security and Development Cooperation Act passed and provided the statutesthat supported the Federal Air Marshal Service.
On September 11,2011, the Air Marshal Program consisted of lessthan fifty armed marshals, who, by statute, flew only on international flights flown by U.S. air carriers. Under the Aviation and Transportation Security Act (ATSA) in 2001, the FAM Service then transferred to TSA from the FAA. See 49 U.S.C. § 44917.
The FAM Service subsequently transferred to the Department of Homeland
Security and initially under the Bureau of Immigration and Customs Enforcement
(ICE), but returned to DHS's TSA in October 2005. Whether at the FAA or TSA, the main responsibility of the FAM Service has been to execute flight missions, meaning that FAMs travel on commercial aircraft and seek to detect and neutralize security threats. Pursuant to statute, "The Under Secretary of Transportation for
Security... may provide for deployment of Federal air marshals on every passenger flight of air carriers in air transportation or intrastate air transportation."
49 U.S.C. § 44917(a)(1).
III. Relevant FactualBackground
The only facts relevant to this dispute are as follows: Robert MacLean was a
Federal Air Marshal who was required by federal regulations and TSA policy to protect SSI and disclose it only to those with a regulatory need to know. See 49
C.F.R. Pt. 1520; SA14-16. On July 29, 2003, Mr. MacLean disclosed to a news
12 Case: 11-3231 Document: 33 Page: 20 Filed: 05/30/2012
reporter that the Agency had cancelled all Las Vegas RON (Remain Overnight) missions up to August 9; 2003. SA27. The cancellation of all Las Vegas RON missions up to August 9, 2003, was SSI at the time of Mr. MacLean's disclosure, and a news reporter is not a person with a regulatory needto know SSI. MacLean v. Dep 't of HomelandSec., 543 F.3d 1145 (9th Cir. 2008); SA44-45.
In his brief, Mr. MacLean has included an extensive discussion of the actions he routinely took to disclose TSA's activities "to Congress and the media."
See, e.g., Pet. Br. at 11. None of the details of any of Mr. MacLean's disclosures that did not involve disclosure of SSI are relevant to this appeal, however. As Mr.
MacLean notes, the Government discovered that Mr. MacLean had engaged in that unauthorized disclosure of SSI during an internal investigation conducted by the
Immigration and Customs Enforcement (ICE) Office of Professional
Responsibility. SA17-43. While that investigation began as a result of Mr.
MacLean's unauthorized undercover appearance on a nightly news program, Mr.
MacLean was not removed for his unauthorized media appearances. Compare
SA46-48 with SA49-51. Rather, Mr. MacLean was removed because during that
investigation, Mr. MacLean provided a sworn affidavit to investigators admitting that he had disclosed to a news reporter that the Agency had cancelled all Las
Vegas RON (Remain Overnight) missions up to August 9, 2003. See SA26-29.
13 Case: 11-3231 Document: 33 Page: 21 Filed: 05/30/2012
The ICE investigation report was completed in June,2005. SA19. In
September,2005, TSA initiated proceedings to remove MacLean for three charges:
Mr. MacLean's unauthorized media appearance,his unauthorized releaseof information to the media, and his unauthorized disclosure of SSI. SA46-48. In responding to the proposal to remove him, MacLean assertedthat his disclosures were protected by the First Amendment. See SA50; 52-64. Mr. MacLean also affirmed that he had disclosed the TSA directive that all Las Vegas RON missions up to August 9, 2003, would be cancelled, specifically admitting that "[t]he underlying factual predicate.., is not contested by FAM McClean." SA54. With respect to the second charge, that he had engaged in an unauthorized release of information to the media, Mr. MacLean noted, "Significantly, Reason 2 does not charge FAM McClean with releasing confidential, sensitive, or otherwise specially protected information." SA54.
After considering Mr. MacLean's First Amendment based response, the deciding official did not sustain either the charge of an unauthorized media appearance or the charge that Mr. MacLean had engaged in an unauthorized release of information to the media. With respect to Mr. MacLean's disclosure of
SSI, however, the deciding official explained that he had determined that Mr.
MacLean's action was "not protected by the First Amendment of the U.S.
Constitution," and sustained the charge. SA50. After considering the relevant
14 Case: 11-3231 Document: 33 Page: 22 Filed: 05/30/2012
Douglas factors, the deciding official determined that removal is the appropriate penalty for that SSI disclosure. See Douglas v. Veterans" Admin., 5 M.S.P.R.
280, 302 ( 1981 ). The deciding official explained that "the disclosure of this S SI had the potential to reveal vulnerabilities in the aviation security system, and as
such, was extremely dangerous to the public we serve." SA50. The deciding
official later testified that, as soon as MacLean disclosed this specific information
about FAMS deployments or missions to the media, "[I]t created a vulnerability within the aviation system. And it set us up for a possible another 9/11 incident.
7 • . It gave people that would want to do us harm information that certain flights
weren't covered by Air Marshals. And if you look at that, it makes the system
vulnerable, especially with flights leaving out of Las Vegas, knowing that certain
flights aren't covered, long-distance flights are not being covered by Air
Marshals." SA68.
SUMMARY OF ARGUMENT
While serving as a Federal Air Marshal, Mr. MacLean disclosed Sensitive
Security Information to a reporter and was subsequently removed for that
misconduct• In this appeal, Mr. MacLean asserts both that the information he
disclosed was not SSI, and that, even if it were, he had a good-faith basis for
believing that it was not or that he was entitled to disclose it anyway. Mr.
15 Case: 11-3231 Document: 33 Page: 23 Filed: 05/30/2012
MacLean also contendsthat the agency's true reason for removing him was becauseof his membership in a labor group.
The Ninth Circuit Court of Appeals has definitively established the status of the information Mr. MacLean disclosed as SSI, however, and Mr. MacLean can no longer challenge that fact. In addition, substantial evidence supports the Board's finding that Mr. MacLean was aware that he was disclosing SSI. Even if he were not, and he subjectively thought he could disclose the information, that would be irrelevant, as the only thing Mr. MacLean was charged with was disclosure of SSI; his intent is irrelevant to sustain the misconduct charge. Substantial evidence also supports the Board's finding that the agency's stated reason for removing Mr.
MacLean, his disclosure of SSI, was not simply pretext. Rather, Mr. MacLean was removed because of the serious security breach he caused by disclosing SSI and for showing no remorse for that disclosure.
Even in his briefing to this Court, Mr. MacLean reveals that rather than feeling remorse, Mr. MacLean prides himself on having revealed to the world what he perceives to be weaknesses of the Federal Air Marshal program. Mr. Maclean therefore asserts both that his removal does not promote the efficiency of the service and that his removal violates the Whistleblower Protection Act. Mr.
MacLean continues not to appreciate the seriousness of his conduct. The fact is that certain disclosures of Government operations are protected by the
16 Case: 11-3231 Document: 33 Page: 24 Filed: 05/30/2012
Whistleblower Protection Act and the First Amendment, in order to permit citizens and employees to monitor and improve their Government. Somedisclosures, on the other hand, causegreat harm when they are revealed. Accordingly, Congress provided that certain disclosures "specifically prohibited by law" are not protected by the Whistleblower Protection Act. In this case,Congressdirected TSA to promulgate regulations prohibiting the disclosure of a specific type of information, namely, information, the disclosure of which would "be detrimental to transportation safety," 49 U.S.C. § 40119(b) (2002), and those are the regulations that Mr. MacLean violated when he disclosed SSI. See also 49 U.S.C. § 114(r). 7
Mr. MacLean's disclosures are therefore not the type of disclosure that Congress wanted to encourage when it passed the Whistleblower Protection Act.
Rather, far from the helpful deed Mr. MacLean claims his action to have been, Mr. MacLean's behavior instead created a security risk that TSA had to address. Because of the seriousness of his actions, and his failure to demonstrate
7 On November 25, 2002, Title XVI Section 1601 of Public Law 107-296 amended 49 U.S.C. § 40119 to retain the authority of the Secretary of Transportation to designate information as SSI despite the creation of the Department of Homeland Security while simultaneously amending 49 U.S.C. § 114(s) to extend that authority to the Under Secretary of TSA as well. Subsection 114(s) was later redesignated as subsection (r) by the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. E, § 568(a), 121 Stat. 1844, 2092 (Dec. 26, 2007). TSA's current SSI regulations are promulgated pursuant to subsection 114(r) although the TSA regulations in effect at the time of Maclean's disclosure, published in the Federal Register on February 22, 2002, were promulgated pursuant to the Under Secretary's authority as set forth in 49 U.S.C. § 40119 prior to its amendment. 17 Case: 11-3231 Document: 33 Page: 25 Filed: 05/30/2012
any potential for rehabilitation, the agencywas reasonablein deciding to remove
Mr. MacLean for the sole charge of disclosing SSI.
ARGUMENT
I. Standard of Review
The scope of judicial review of MSPB decisions by this Court is narrowly defined and limited by statute. The Board's decision must be affirmed unless it is found to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5
U.S.C. § 7703(c); Sandel v. Office of Personnel Management, 28 F.3d 1184, 1186
(Fed. Cir. 1994); Cheeseman v. Office ofPers. Mgmt., 791 F.2d 138, 140 (Fed. Cir.
1986), cert. denied, 479 U.S. 1037 (1987).
A decision must be affirmed as supported by substantial evidence if the record contains "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Brewer v. United States Postal Serv., 647 F.2d
1093, 1096 (Ct. C1.1981), cert. denied,, quoting Consolidated Edison Co. v.
National Labor Relations Bd., 305 U.S. 197, 229 (1938). "The standard is not what the court would decide in a de novo appraisal, but whether the administrative determination is supported by substantial evidence on the record as a whole."
Parker v. United States Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir. 1987). Legal
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questions, on the other hand, are reviewed de novo. Welshans v. US. Postal Serv.,
550 F.3d 1100, 1102 (Fed. Cir. 2008).
IL Substantial Evidence Supports the Board's Finding That Mr. MacLean Disclosed SSI
A. The Information Mr. MacLean Disclosed is SSI
The sole charge for which Mr. MacLean was removed is that he disclosed
SSI to an MSNBC reporter. Throughout his brief, Mr. MacLean suggests that the information he disclosed was not SSI. Indeed, the first argument in his brief is that the information he disclosed does not qualify as SSI pursuant to 49 C.F.R.
§ 1520.7(j) (2002), which was the regulation in effect when he made the disclosure. See Pet. Br. at 28 (asserting that his disclosure did not reveal "specific numbers of Federal Air Marshals...") (emphasis in original).
While on its face, Mr. MacLean's disclosure that zero Air Marshals would
fly on overnight missions is a reference to a "specific number[] of Federal Air
Marshals," this Count need not, and indeed cannot, address whether Mr.
MacLean's disclosure revealed SSI. As the Board found, when the Under
Secretary determines, by way of final order, whether particular information
qualifies as SSI--or, if so, to what extent it can be disclosed--that determination
constitutes final agency action subject to judicial review. See 49 U.S.C.
§ 46110(a). Here, the agency issued such a final order, which stated, in pertinent
part, that "the information in question constituted SSI under the SSI regulation then
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in effect, 49 C.F.R. § 1520.7(j), asthe information concernedspecific FAM deployments or missions on long-distance flights." SA44-45. The D.C. Circuit or the court of appealsfor the circuit in which a complaining party residesor has its principal place of businesshas exclusive review of such SSI orders. Maclean, 112
M.S.P.R. at 10 (citing 49 U.S.C. § 46110); see also Gilmore v, Gonzales, 435 F.3d
1125, 1132-34 (9th Cir. 2006). Thus, after the Ninth Circuit affirmed TSA's final order that Mr. MacLean's disclosure qualified as SSI pursuant to 49 C.F.R.
§ 1520.7(j); see MacLean, 543 F.3d at 1149, the Board had no jurisdiction to reconsider that question. Accordingly, this Court has no jurisdiction to consider the issue upon appeal.
Mr. MacLean also now contends that his removal was improper because the letter proposing his removal cited 49 C.F.R. § 1520.5(b)(8), which was a recodification of 49 C.F.R. § 1520.7(j), rather than 49 C.F.R. § 1520.70) itself.
Mr. MacLean suggests that his removal therefore constitutes a termination based upon a charge not brought, Pet. Br. at 26, was a "retroactive adjudication," ld. at
27, and violates the Chenery doctrine that judicial review must limit itself to the reasonsthe agencygave for its actions. Pet. Br. at 28-31.
Contrary to Mr. MacLean's assertion, the charge for which TSA proposed to remove Mr. MacLean was "Unauthorized disclosure of Sensitive Security
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Information." SA47. In the specification supporting that charge,the TSA described the specific behavior for which Mr. MacLean was being removed:
On July 29, 2003, you disclosed Sensitive Security Information in an unauthorized manner. Specifically, you informed the media that all Law Vegas FAMs were sent a text messageto their government issued mobile phones that all RON (Remain Overnight) missions up to August 9th would be cancelled, or words to that effect.
SA47. There is no question that that charge sufficiently appraised Mr. MacLean of the precise behavior for which he was to be removed. As this Court has explained, the purpose of a notice of proposed removal is to "notify the employee of the conduct with which he is charged in sufficient detail to permit the employee to make an informed reply." Lachance v. MeritSys. Prot. Bd., 147 F.3d 1367, 1371
(Fed. Cir. 1998); see also, Brennan v. Department of Health and Human Servs.,
787 F.2d 1559, 1561 (Fed. Cir. 1986) (The purpose of an agency's notice of charges is to put an employee on notice of the allegations against him in sufficient detail to apprise him of the allegations he must refute or acts he must justify.").
Thus, while Mr. MacLean is correct that 49 C.F.R. § 1520.70) is applicable to the question of whether his disclosure qualifies as SSI and that the removal letter cited a more recent version of that regulation when explaining that his disclosure qualifies as SSI, that fact is immaterial to this case. To the extent that Mr.
MacLean is suggesting that he needed to have been placed on notice of the correct standard for determining whether his disclosure was actually SSI, Mr. MacLean
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was clearly on notice of that standard, asthe agencyexpressly statedthat his disclosure "constituted SSI under the SSI regulation then in effect, 49 C.F.R.
§ 1520.7(j)." SA44-45. As Mr. MacLean challenged that order in the Ninth
Circuit, he cannot assertthat he was not on notice of the applicable regulation. See
MacLean, 543 F.3d at 1149. Moreover, as the Board found, for purposes of assessing the sufficiency of the notice of proposed removal, the regulation cited is
"substantively the same as the regulation quoted in the charge." A7, n. 6. It makes no difference which SSI regulation the agency cited, as his disclosure qualifies as
SSI under either. Mr. MacLean has therefore demonstrated no prejudice resulting from TSA's initially indicating that his disclosure also qualifies as SSI under the newer standard codified at 49 C.F.R. § 1520.5(b)(8).
While Mr. MacLean also contends that his removal was a "retroactive adjudication," Pet. Br. at 27, that would only be true if Mr. MacLean were removed for disclosing information that qualified as SSI under the new standard,
49 C.F.R. § 1520.5(b)(8), but that did not qualify as SSI under the older standard codified at 49 C.F.R. § 1520.70). Because the Ninth Circuit found that the information he disclosed to be SSI pursuant to 49 C.F.R. § 1520.7(j), however, there has been no retroactive application of any regulation here.
Mr. MacLean also argues that TSA's determination that his disclosure was
SSI, which was affirmed by the Ninth Circuit, is "irrelevant here" because the
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order designating that information asSSI was issuedafter Mr. MacLean was terminated, to facilitate judicial review. Pet. Br. at 31. But the Ninth Circuit made clear that the TSA order designating as SSI the information that MacLean disclosed "does not constitute a retroactive agency adjudication." MacLean, 543
F.3d at 1149. The importance of that order, and subsequent judicial decision, is that they confirm that the information Mr. MacLean disclosed was, in fact, SSI.
Because Mr. MacLean was removed for the sole charge of disclosing SSI, it is certainly relevant that the information he disclosed was actually SSI. While Mr.
MacLean would prefer to pretend the entire proceedings related to his challenge of the status of the disclosures had not occurred, he cannot re-adjudicate that determination now. Mr. MacLean is correct, however, that the fact that the information he disclosed is SSI does not end this case. AS the Ninth Circuit recognized, Mr. MacLean remained free, after that proceeding, to challenge his removal at the Board and to raise any appropriate defense. Still that decision foreclosed the first argument Mr. MacLean attempts to make before this Court: that the information he disclosed was not actually SSI.
Mr. MacLean's attempt to rely upon the Chenery doctrine also misses the mark. This is not a situation in which the Board affirmed an agency decision upon a different ground than the agency. TSA removed Mr. MacLean for the charge of
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"Unauthorized disclosure of Sensitive Security Information," SA47, andthe Board affirmed the TSA's removal decision on that samebasis.
Mr. MacLean also arguesthat agencyregulations require marking of SSI, while the text he received and disclosed to an MSNBC reporter was sent in an
"unprotected, uncontrolled manner." Pet. Br. at 20. While Mr. MacLean is correct that TSA regulations generally dictate that SSI be marked when transmitted, the marking itself does not create SSI. As Mr. MacLean has acknowledged,
"information about specific flights that could identify individual undercover agents" falls within the regulatory definition of SSI. Pet. Br. at 18. Even if marking would have been preferable, any failure of TSA to have done sohere does not relieve Mr. MacLean of his duty to safeguardthat SSI information. As an Air
Marshal, Mr. MacLean had an explicit duty to protect SSI from unauthorized disclosure. The fact that other employees might have failed in their duty to mark
SSI does not change the fact that the information was SSI. Nothing about TSA's having sent the text to Mr. MacLean's unencrypted cell-phone changed the character of that information from SSI to non-SSI. As Mr. MacLean has acknowledged, he knew that disclosing the specific flight that would be taken by an Air Marshal would be a disclosure of SSI. Mr. MacLean's argument applied to that analogous situation is that if he had received specific flight information for a particular Air Marshal on his cell phone, he would have been free to broadcast it to
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the world. There is no support for such arestrained reading limiting his duty to safeguard SSI only to information appropriately marked and encrypted.
Irrespective of any of Mr. MacLean's suggestionsto the contrary, the Ninth
Circuit has already explicitly held that the specific information Mr. MacLean disclosed was SSI,and that TSA's order so stating is valid. Neither the Board nor this Court in reviewing the Board's decision can overturn that conclusion. Because
/ it has been established that the information Mr. MacLean disclosed was SSI, Mr.
MacLean's contention that his comments were not limited to the Las Vegas region nationally is without any significance. PI. Br. at 17; also see SA45-46.
B. Mr. MaeLean Should Have Known That The Information He Disclosed Was SSI And That He Could Not Disclose SSI; It Is Irrelevant Whether He Had A "Good Faith Basis" Otherwise
Mr. MacLean's second category of arguments is that the TSA cannot remove him for disclosing SSI because he was not aware that the information he disclosed was SSI, Pet. Br. at 32, because he had a "good faith basis" that whistleblowing protections apply to SSI disclosures and would therefore protect him from retaliation for disclosing SSI, id. at 33, and because he consistently testified that he "thought he was acting lawfully to defend his country." Id. at 34.
The record does not support Mr. MacLean's assertion that he did not know the information he disclosed was SSI. According to Mr. MacLean, he understood that compromising a single Air Marshal's location would be a disclosure of SSI,
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but that he believed disclosing a general absenceof Air Marshals would not be a disclosure of SSI. See, e.g,. Pet. Br. at 18 (recognizing that Mr. MacLean understood "flight numbers, seating assignments, arrival gates, or other information that gave away the FAM's identity" to be SSI). Mr. MacLean's explanation is illogical, as it fails to appreciate that telling someone that there will be no Air Marshal on a plane is, in fact, revealing that specific flight numbers will have no Air Marshal onboard, and disclosing that fact is at least as damaging to national security as telling someone that an Air Marshal will be on a particular plane. When information about an Air Marshal's location is leaked, which Mr.
MacLean acknowledges understanding to be an SSI disclosure, a terrorist would know that a single plane is well protected, and thus which plane they should not target. In that situation, a terrorist would not know which plane to target, however, as an Air Marshal could also have been assigned to any other flight. In contrast, after Mr. MacLean's disclosure, a terrorist knew exactly which planes were unprotected by Air Marshals, and therefore which specific planes to target. It would make no sense for only the lesser disclosure to be a disclosure of SSI. Mr.
MacLean's assertion that he believed as much is, therefore, inherently incredible.
Based upon both Mr. MacLean's demeanor and the implausibility of his
contention, the administrative judge found that Mr. MacLean was not a credible witness. A64-65 ("Based upon my observations of the appellant at the hearing,
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and for the reasonsset forth above inclusive of the prior credibility determination, the appellant's assertion that he believed that the text involving RONs was 'just a plain message' and not SSI, is not creditable."). The administrative judge found that Mr. MacLean did not care whether the information was SSI and that he was
"to some degree,acting on his frustration with OIG and his superiors, in conveying information to the reporter, rather than a belief that the text message at issue was not SSI as stated at the hearing." A50.
In response, Mr. MacLean does not defend the irrational distinction he has attempted to draw between revealing a single agent's Schedule and revealing all agents' schedules. Instead, he simply asserts that he has consistently maintained that position and argues that the administrative judge's credibility determination is, therefore, improper. See Pet. Br. at 38-39 ("There is nothing in the record that
MacLean believed challenging the consequences from total abandonment from all long distance flights was equivalent to identifying a weak link specific target.").
But the administrative judge's credibility determination was based upon the implausibility of Mr. MacLean's asserted belief. That Mr. MacLean was consistent in asserting that implausible distinction does nothing to undermine the administrative judge's credibility finding. While Mr. MacLean contends that the administrative judge's "disagreement is insufficient" without record support, the administrative judge did more than rely solely upon logic, although that would also
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have beensufficient. Instead, the administrative judge also relied upon the testimony of the deciding official, who explained that Mr. MacLean "knew that the information he conveyed 'speaks directly to schedules' becauseit conveys the
'mission tempo' and involves the presenceof FAMs on types of flights." A65
(citing hearing testimony). The administrative judge's finding that Mr. MacLean's account of his subjective belief is not credible is therefore supported by substantial evidence.
Mr. MacLean also notes that there is nothing inconsistent between his having acted out of frustration and his assertion that he believed his actions to have been lawful. Pet. Br. at 40. That is certainly true, and the administrative judge did not view those reasonsascontradictory. Rather, the administrative judge rejected
Mr. MacLean's assertionabout his belief that the information was not SSI because that assertion is inherently incredible. As the administrative judge explained:
The appellant's testimony that revealing the presence or absenceofa FAM on a particular flight and/or gate in the circumstances above is inconsistent and contrary to his assertion that canceling RON missions for a specified period 'was just aplain message' rather [than] the type of message discussed in his SSI training, because such a disclosure necessarily conveys the latter scenario addressedby the appellant above.
A49.
Mr. MacLean's contention that his misconduct should be excusedbecause he had a "good faith basis" for believing that he could disclose SSI under the 28 Case: 11-3231 Document: 33 Page: 36 Filed: 05/30/2012
circumstancesis also undermined by the record. Though Mr. MacLean now alleges that he "was not on actual or inquiry notice of the applicability of the SSI regulations," and that "[t]he record contains no reference that [the SSI policy] had beendisseminatedto MacLean or other FAMs, he had read it or was otherwise aware of it," the administrative judge was reasonableto credit Mr. MacLean's contrary statementthat: "I signed a statement acknowledging that I - I attendeda
SSI training and readthe - read the policy," and his acknowledgementthat in 2001 he reviewed "a very thick pamphlet of a policy going into - into detail of- or what was SSI." A44. In short, asthe administrative judge found, Mr. MacLean testified that "he knew that disclosing of sensitive information was a basis for removal."
A44; see also A24 ("we find that the appellant knew that he was not permitted to share information about FAM coverage with a reporter, regardless of the fact that he received the information as a text message on his cell phone instead ofon his encrypted PDA.").
Despite Mr. MacLean's insistence that he was unaware that he was disclosing SSI when he told a reporter that there would be no Air Marshals on certain airplanes, even if that were true, it is ultimately irrelevant. It does not matter whether the administrative judge believed Mr. MacLean's account that he perceived the information he disclosed not to be SSI or that he believed he could disclose it even if it were. Even if Mr. MacLean genuinely believed that the
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information he disclosed was not SSI, the fact remains that the information was
SSI and he was not legally entitled to disclose it to a reporter. Mr. MacLean was bound by agencypolicy not to disclose SSI, and nondisclosure of SSI was a condition of his employment. See SAI-16. As the full Board recognized, Mr.
MacLean was removed for "Unauthorized disclosure of Sensitive Security
Information." SA47, 49. There is no element of intent in that charge, and TSA need not demonstrate that Mr. MacLean knew his conduct was wrong, only that it was. Mr. MacLean does dispute the Board's finding that the charge contains no element of intent. His arguments about his intentions, while not credible, are also irrelevant.
Mr. MacLean's contention that he had reason to believe that his disclosure would be protected by the Whistleblower Protection Act is similarly beside the point, as his subjective belief about whether he could legally disclose SSI is not at issue when assessing culpability. Rather, the only issue in the charge is whether
Mr. MacLean disclosed SSI to an unauthorized person. Because he did, the Board was correct to sustain the charge. A51.
III. The Board's Did Not Abuse Its Discretion In Finding That Mr. MacLean's Termination Serves The Efficiency Of The Service
Mr. MacLean also believes that removal was too severe a penalty for his disclosure of SSI. He asserts that his removal undermines TSA's mission of protecting the flying public rather than promoting the efficiency of the servicel
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BecauseMr. MacLean believes that his actions "expos[ed] and prevent[ed] what could have beena disastrousgovernment breakdown," he arguesthat "[i]t undermines the merit systemto terminate rather than protect him." Pet. Br. at 45.
Mr. MacLean's argument is basedupon his belief that his judgment about how best to protect the flying public--by continuing RON missions out of Las Vegas-- is better than TSA's proposedpolicy of cancelling those missions and shifting resourceselsewhere. Pet. Br. at 45-46. Based upon that conclusion, Mr. MacLean is essentially arguing that the endsjustify the means; becausehe believes that he prevented "implementation of a mistaken plan to abandonthe public" and
"maintaining false appearancesthat government is operating effectively," he assertsthat he should not have been removed from his position.
The first problem with Mr. MacLean's argument is that he assumesthat his actions made the flying public safer. There is no evidence to support that conclusion. First of all, Mr. MacLean focuses solely upon the actual presenceor absenceof Air Marshals on flights asthe only measureof whether aparticular flight is safe. In doing so,Mr. MacLean ignores the fact that the potential that an
Air Marshal will be on a flight is an important deterrent to terrorist activity. The presence of FAMs on certain flights, with those locations kept secret, protects all flights to some degree. As the administrative judge explains, an important factor in the program's effectiveness is "the positive uncertainty that is then created on
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flights that are not actually protected by one or more undercover armedFAMs."
A58. When Mr. MacLean disclosed the text messagethat certain flights would not have undercover armed FAMs onboard, he directly removedthat positive uncertainty, thereby making those flights less safe than they otherwise would have been. As the deciding official testified, "[a]s soon as he gave that information out to the media, it created a vulnerability within the aviation system." A62. While
Mr. MacLean boasts to have removed TSA's "false appearances that government is operating effectively," those "false appearances" are an essential part of TSA's arsenal for dealing with terrorist threats. By shining a light on where FAMs would not be operating, Mr. MacLean undermined the system.
After TSA became aware of Mr. MacLean's disclosure, the agency was forced to reallocate scarce resources to directly address that new vulnerability. As a result, as the administrative judge recognized, Mr. MacLean's actions "may have indeed strengthened FAM presence on the Las Vegas RON mission flights as asserted." A59. It is that result that Mr. MacLean would now take credit for and considers a job well done. But Mr. MacLean ignores that TSA's mission is not solely to protect Las Vegas flights; it is to protect all flights. It is undisputed that
TSA is unable to "staff all commercial passenger flights at all times nationwide and/or worldwide with armed FAMs." A59. After Mr. MacLean's disclosures,
TSA necessarily shifted its limited resources to address the vulnerability created by
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that disclosure. As a result, TSA could not usethe positive uncertainty that otherwise would have been in place to strengthen the FAM presence elsewhere.
A59. While Mr. MacLean may have thought that what he was doing was helping strengthen security, he was actually undermining it. As the deciding official testified, when addressing Mr. MacLean's action:
He thought there was a vulnerability created in the system when there was--when those types of missions were dropped, when they were not covered. But he is not in a position--he does not.have all information. He's not in a position to make that kind of decision. There are other factors that go into that decision he would be unaware of.
A67. Mr. MacLean himself acknowledges that at the time of his disclosure, TSA was attempting to address a threat created by a "very specific plan to attack
European, Australian and East Coast targets." Pet. Br. at 5 (emphasis added). Mr.
MacLean was not, of course, privy to all of the intelligence upon which FAM
assignments are based, and cannot have known where FAMs would best be allocated. A59. Despite that fact, Mr. MacLean forced TSA to re-allocate resources to particular deployments, regardless of how the intelligence suggested those resources might better be allocated. In short, while perhaps well intentioned,
Mr. MacLean's actions did not make the public safer.
Moreover, even if Mr. MacLean's ideas about TSA's strategic policy
decisions were objectively correct, as he asserts, that is irrelevant. TSA could not
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complete its mission of protecting civil aviation if Air Marshals were able to publicly air disagreementsabout how TSA should be allocating its resourcesas they pertain to deployments or missions. It is not the merit of Mr. MacLean's position that is the problem, or the reasonhe was removed, but rather it is the fact that he disclosed SSI in his public dispute with TSA management about the proper allocation of FAMs. Whenever specific details of how TSA is allocating its resourcesbecome public that public spotlight undermines TSA's mission. That is why the deployment of FAMs is designatedSSI. See 49 C.F.R. § 1520.70). As the Board explained, "maintaining confidentiality of plans for FAM deployments goes to the heart of one of TSA's missions, that of promoting civil aviation safety and security." A9.
Mr. MacLean also asserts that neither the deciding official nor the Board adequately addressed the relevant factors required by Douglas v. Veterans Admin.,
5 M.S.P.R. 84 (1981). Pet. Br. at 41-45. Specifically, he argues that more weight should have been given to the fact that he was a "first time offender with an otherwise clean record." Pet. Br. at 20. What Mr. MacLean fails to appreciate is that even a single disclosure of S SI of the magnitude involved here could have had catastrophic consequences. In fact, the deciding official considered various mitigating factors, including his lack of prior discipline and the fact that he performed his job "in an exemplary manner," but the deciding official determined
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that those mitigating factors did not outweigh the seriousness of the offense. The seriousness with which the agency viewed Mr. MacLean's offense is summarized by the deciding official's avowal that "it set us up for a possible another 9/11 incident." A62.
In addition, the reason that someone's being a first time offender would generally be a mitigating circumstance is because that individual would normally be presumed to have made a mistake, which would not be repeated. Rather than perceiving his SSI disclosure to have been a one-time mistake, however, Mr.
MacLean continued, even during his MSPB hearing, to stress that he believed he was right to have committed that act. He stressed that because he believed that
"Public lives were as risk. It did not matter to me whether it was, confidential, law enforcement sensitive, or classified information." Pet. Br. at 7. Based in part upon that statement, the deciding official found that Mr. MacLean demonstrated no remorse for his misconduct, and the administrative judge agreed. JA69.
Mr. MacLean faults the administrative judge for relying upon, in addition to his statement that "it did not matter" to him whether the information was SSI, Mr.
MacLean's prior sworn statement that he has "NO REGRETS or feel[s] NO
REMORSE for going to a credible and responsible media representative, Brock
Meeks. Brock Meeks reporting these gross mismanagement issues has resulted in
immediate and positive change in deadly FAMS policies." See Pet. Br. at 37. Mr.
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MacLean now arguesbefore this Court that by making that statementhe was
referring only to his camouflaged 2004 appearancebefore the media and was not
referring to his 2003 SSI disclosure, ld. Mr. MacLean's argument is contradicted
by the record. In his sworn statement, Mr. MacLean discussed both his appearance
on television in 2004, as well as his SSI disclosure in 2003. SA26-29. In that
statement, he specifically listed each of his media contacts, including his 2003 SSI
disclosure. Regarding that disclosure, he explained, "For the July 29, 2003 article,
I informed Brock Meeks that all Las Vegas FAMs were sent a text message to their
Government issued mobile phones that all RON (Remain Ovemight) missions up
to August 9 would be canceled." JA27. His closing statement in that declaration,
in which he defended his various contacts with the media, is most reasonably read
as referring to all of those media contacts, rather than only the more recent ones.
See JA29.
Moreover, Mr. MacLean does not dispute the Board's finding that he, in
fact, has no remorse for his actions. Rather, he has continued, from the first time
his actions were revealed, to defend his actions as justified. TSA was more than
reasonable in concluding that if Mr. MacLean again felt that lives were at risk from
any particular policy, he would again disclose SSI in order to prevent the harm he perceived. In short, as the deciding official found, there was "little chance for [Mr.
MacLean's] rehabilitation as a FAM," as he does not even perceive himself to have
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done anything wrong. SA50. As the Board found, "the agency could anddid reasonably infer arisk from the appellant's lack of remorse to be a significant distinction justifying the agency's decision to remove him rather than imposing a lesserpenalty." A19.
Mr. MacLean's contention that he had good intentions, and did not act maliciously, is similarly unhelpful to mitigate the penalty to a lesserdiscipline.
See Pet. Br. at 20. Indeed, both the administrative judge and the full Board recognized that Mr. MacLean perceived himself to have been doing the right thing.
That is part of the problem here. Because Mr. MacLean believes he was right to have disclosed SSI, he is likely to do so again when he perceives doing so as being justified under the circumstances. The TSA cannot trust any Air Marshal with SSI if that Air Marshal feels entitled to substitute his own judgment for the determination of the agency in deciding when disclosure of SSI is appropriate.
Rather, TSA is entitled to require its Air Marshals to safeguard SSI, even if they disagree with the agency's policies.
Mr. MacLean also argues that his removal was too harsh a penalty because
"no other Air Marshal has been terminated for an unauthorized SSI disclosure."
Pet. Br. at 44. Mr. MacLean contends that the instances of comparators whose unauthorized disclosures he submitted to the Board each "more dangerously created more focused targets." Pet. Br. at 43. He asserts that the Board did not
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adequatelyexplain why his SSI disclosure "was so much more improper that he had to be fired." Pet. Br. at 44. Contrary to Mr. MacLean's assertions,the Board specifically addressedwhy his SSI disclosure was worse than the comparatorshe cited. The administrative judge noted of comparator A.R. that the information disclosed was not learned through official channels,that comparator J.S.revealed his identity to avoid a general panic onboard an aircraft, and that comparatorJ.M. revealed SSI only to individual airline employees. A68-69. As the full Board noted, Mr. MacLean's lack of remorse for his SSI disclosure is a key feature distinguishing his misconduct from those other comparators. A19. In addition, while Mr. MacLean characterizes the comparators' SSI disclosures asmore serious than his own, he is mistaken, and his argument reveals a misunderstandingof the seriousnessof his conduct. In eachof the comparator situations, after those unauthorized SSI disclosures, a potential terrorist would have learnedonly that a single plane was well protected and thus which plane they should not target. In contrast, aswe already noted, after Mr. MacLean's disclosure, a terrorist knew exactly which planes were unprotected by Air Marshals, and therefore which
specific planes to target. Mr. MacLean's disclosure is therefore far more serious than the comparators.
Mr. MacLean arguesthat "[t]he primary difference with other SSI releasesis that MacLean's actions exposed and led to correcting an agency mistake that
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prevented a government breakdown." Pet. Br. at 44. That is not a difference that weighs in his favor, however. It is not simply the added notoriety in terms of the public's perception of TSA that is at issue, but, rather, aswe previously explained, the problem with Mr. MacLean's disclosure is that it was soserious it forced the agencyto alter its plans. Whereas there is no evidence that agencycorrective action was neededto addressthe comparator SSI disclosures, Mr. MacLean's disclosure resulted in the agencyhaving to shift its resourcesto addressthe vulnerability createdby his disclosure. SA69. Again, what Mr. MacLean fails to appreciate is that it is not simply the presenceor absenceof Air Marshals on planes that matters, but also the perception createdby their secretdeployment that any given plane may carry an Air Marshal that protects the flying public. Any exposure of any details related to where Air Marshals will, or will not, be undermines that mission.
Finally, Mr. MacLean contendsthat the deciding official was biased against him becausethat official was later placed under investigation for a separatecharge.
Mr. MacLean asksthis Court to consider evidence that he contendssupports that allegation. While Mr. MacLean acknowledgesthat he "moved for the Board to introduce the corresponding evidence into the record of this proceeding," Mr.
MacLean statesthat "it did not rule" on that motion. Pet. Br. at 21. In fact, however, the Board explicitly denied that motion. A43 ("the appellant's motion to
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reopen the record is DENIED."). The Board explained that Mr. MacLean had not
adequately explained why he could not have earlier "probed, elicited, or otherwise
introduced thesematters no raised, prior to the record closing." A43. As this
Court has explained, "[p]rocedural matters relative to discovery and evidentiary
issuesfall within the sound discretion of the board and its officials." Curtin v.
• Office ofPers. Mgmt., 846 F.2d 1373, 1379 (Fed. Cir. 1988) (citing Spezzaferro v.
FAil, 807 F.2d 169, 173 (Fed. Cir. 1986)). Accordingly, decisions pertaining to
discovery matters will not be overturned unless an abuse of discretion by the
administrative judge is both clear and prejudicial, ld. Here, Mr. MacLean has
neither demonstrated why the Board erred in denying his motion nor how that
denial could have prejudiced him. Even if Mr. MacLean's assertion that the
deciding official was later demoted is accurate, that does not indicate either that the
deciding official's decision in this case was influenced by that subsequent
investigation or that there is any reason to believe another deciding official would
have made a different decision. In sum, this Court has been given no reason to
hold that the Board committed any procedural error in denying Mr. MacLean's
motion to reopen the record.
IV. Substantial Evidence Supports The Board's Finding That Mr. MacLean Was Not Removed For His FLEOA Activities
Mr. MacLean argues that the Board "has not adequately addressed" his
argument that he was removed for engaging in activities as part of the Federal Law
4O Case: 11-3231 Document: 33 Page: 48 Filed: 05/30/2012
Enforcement Officers Association (FLEOA). Pet. Br. at 47. According to Mr.
MacLean, TSA began the investigation that ultimately led to his removal because of his FLEOA activities, and, accordingly, he should not be removed for the results of that investigation. Id. at 48-51. In fact, both the administrative judge and the full Board thoroughly considered Mr. MacLean's contention that he was removed for his FLEOA activities. See A15-20; 52-55. In contrast to Mr. MacLean's argument, the administrativ e judge explained that Mr. MacLean's testimony
"reflects that his unauthorized appearance on a national network news program, rather than his FLEOA activities, was the catalyst [for] the [Office of Professional
Responsibility]'s investigative actions including the [Report of Investigation] and investigative interview." A55. The full Board also found that Mr. MacLean
"failed to meet his burden to establish that the reason articulated by the agency for its decision to remove him was pretextual and that the real reason underlying that decision was his FLEOA activities." A17.
Mr. MacLean has provided no reason to doubt the Board's findings. Mr.
MacLean's primary support for his argument that he was removed for FLEOA activities is his assertion that he was treated more harshly than comparators. Pet.
Br. at 50. As we have already demonstrated, however, the reasons why he was removed, and others were not, are understandable and appropriate. Beyond that argument, Mr. MacLean simply reiterates, without citation to any evidence in the
41 Case: 11-3231 Document: 33 Page: 49 Filed: 05/30/2012
record, that the Board failed to consider that his FLEOA activities were the reason he was removed. Pet. Br. at 51. The only evidence he even mentions is evidence that TSA's management demonstrated animus against FLEOA leaders, ld. As the
Board found, even if Mr. MacLean were correct in his assertion that "agency managers disapproved of his FLEOA activities," he failed to present any "direct evidence that the agency retaliated or discriminated against him for engaging in
FLEOA activities when it removed him from employment." A! 7. Moreover, even if Mr. MacLean had provided such evidence, it would have been relevant only to the two charges that were brought against Mr. MacLean but were not sustained.
Mr. MacLean contends that the ICE investigation was a "retaliatory investigation" that demonstrated the agency's animus against him for his FLEOA activities. See Pet. Br. at 48. Even if Mr. MacLean were correct, that would only mean, at most, that the agency could not discipline Mr. MacLean for those activities that led to the investigation. Mr. MacLean was not removed for those activities, however. Instead, he was successful in convincing the deciding official not to affirm the charges of unauthorized media appearance and unauthorized release of information to the media. Rather than removing Mr. MacLean for those media contacts that Mr. MacLean describes as FLEOA activities, the agency removed Mr. MacLean only for his disclosure of SSI,which predated Mr.
MacLean's involvement in FLEOA. See Pet. Br. at 10. Thus, Mr. MacLean's
42 Case: 11-3231 Document: 33 Page: 50 Filed: 05/30/2012
argument that the first two chargeswere brought asa result of FLEOA activities is beside the point.
V. Mr, MacLean's Removal Does Not Violate The Whistleblower Protection Act
Mr. MacLean's final argument, in which he is joined by amici, is his contention that his removal violates the Whistleblower Protection Act (WPA). The
Board held that the WPA does not apply to disclosures of SSI, because such disclosures are "specifically prohibited by law," and, therefore, are not protected whistteblowing. A9 (citing 5 U.S.C. § 2302(b)(8)(A)). Title 5 U.S.C. § 2302(b)(8) provides that:
(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority --...
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of--
(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences--
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,
if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order 43 Case: 11-3231 Document: 33 Page: 51 Filed: 05/30/2012
to be kept secret in the interest of national defense or the conduct of foreign affairs ....
5 U.S.C. § 2302(b)(8) (emphasis added).
In its interlocutory ruling in this case,the Board held that DHS's regulation is within the scopeof the "specifically prohibited by law" proviso. See MaeLean I
112 M.S.P.R. 4 at ¶¶ 20-23. After that decision was issued, the same amici who have appeared before this Court expressed concern with the Board's decision.
A12. In light of those concerns, in the final decision now under appeal, the Board
"recognize[d] that [its] decision in MacLean I could be read broadly to allow any regulation that meets certain conditions to be accorded the full force and effect of law, and thus, a disclosure in violation of such a regulation could be construed as
'prohibited by law'" under 5 U.S.C. § 2302(b)(8)(A). A10. The Board then clarified that it rejected that broad reading as "inconsistent with the policies that
Congress embodied in the Whistleblower Protection Act." Id. The Board made clear that its interpretation of the "specifically prohibited by law" proviso is considerably more narrow than amici had interpreted its first decision to be.
Accordingly, the Board expressly modified MacLean I "to the extent it is inconsistent with" the decision this Court is now reviewing. A10.
In its final decision, the Board explained that Mr. MacLean's disclosure of
SSI here was "specifically prohibited by law" because the agency regulation he violated "was promulgated pursuant to an explicit Congressional mandate that
44 Case: 11-3231 Document: 33 Page: 52 Filed: 05/30/2012
required TSA to prohibit such disclosures." A10 (emphasis added). The Board noted that Congress had specifically directed the TSA to issue aviation-related regulations "'prohibiting disclosure of information obtained or developed in carrying out security' if, in the agency's view, 'disclosing the information' would
'be detrimental to the safety of passengers in air transportation.'" A10-11 (quoting
49 U.S.C. § 40119(b)(1)(C) (1994), codifying Pub. L. No. 103-272, § 101,108
Stat. 745, 1117 (July 5, 1994)). The best way to understand the Board's holding is that the "law" that specifically prohibits the disclosure of SSI is the statute passed by Congress and codified at 49 U.S.C. § 40119 and 49 U.S.C. § 114(r). By issuing the regulations that Congress ordered TSA to prescribe, TSA was not simply acting upon its own authority but was instead acting pursuant to a specific statutory directive to describe those categories of information the disclosure of which would be prohibited by 49 U.S.C. § 40119. Thus, Mr. MacLean's disclosure was both
"specifically prohibited by" 49 U.S.C. § 40119, as well as by the TSA regulation.
The Board made clear that it was critical to its decision that Mr. MacLean's disclosure did not simply violate a TSA regulation, but instead violated "a regulation promulgated pursuant to an express legislative directive," which thus made his disclosure "'specifically prohibited by law' so as to bring it outside the scope of the whistleblower protection provisions of 5 U.S.C. § 2302(b)(8)." A12.
The Board's decision therefore maintains the limit upon the applicability of the
45 Case: 11-3231 Document: 33 Page: 53 Filed: 05/30/2012
"specifically prohibited by law" provision to statutes,and encompassesregulations only to the extent that those regulations implement a specific statutory requirement that an agency describe the information that must be protected.
There is no dispute that Congress did not intend for all regulations to qualify asthe type of"law" that would remove disclosures from WPA protection. As Mr.
MacLean notes, Congressremoved language that would have so provided during the law's development, and Mr. MacLean accurately quotesthe House Conference
Report's statement so stating. See Pet. Br. at 57. Mr. MacLean also accurately quotes the Senate Report accompanying passage of the WPA, which clarifies that the phrase refers to disclosures exempted by a statute that "refers to particular types of matters to be withheld." Pet. Br. at 57 (quoting S. Rep. No. 95-969, 95th
Cong., 2d Sess., 12 (1978), reprinted in 1978 U.S. Code and Admin. News 2723,
2743) (Senate Report). There is also no dispute that Congress has authority to directly exclude categories of information from WPA protection. Both Mr.
MacLean and amici agree that Congress may do so through statute. The only question is whether Congress may exercise that authority by issuing a statute that delegates the task of describing the protected information to another entity, in this casean executive branch agency.
Amici argue that in order to exempt certain disclosures from WPA protection, "Congress must have explicitly prohibited such a disclosure via
46 Case: 11-3231 Document: 33 Page: 54 Filed: 05/30/2012
legislative enactment." Am. Br. at 9. We do not disagree. The only dispute is whether 49 U.S.C. § 40119 serves asthat legislative enactment. As we previously noted, section 40119 provides that "the Administrator shall prescribe regulations prohibiting disclosure of information obtained or developed in carrying out security.., if the Administrator decides disclosing the information would... (C) be detrimental to the safety of passengersin air transportation." It is difficult to seewhy that is not precisely the type of statutethat the SenateReport describedas a statutethat "refers to particular types of matters to be withheld." SenateReport at 23. Though amici assert that Section 40119 "does not refer to particular types of matters to be withheld," Am. Br. at 14, that statute is expressly limited to information "detrimental to the safety of passengers in air transportation."
The gravamen of both Mr. MacLean and amici's arguments is their view that
"specificity cannot be delegated to agencies." Am. Br. at 14; see also Pet. Br. at 52
(asserting that there can be no "derivative" statutory authority.). Mr. MacLean and amici thus contend that Congress must itself list every type of information that qualifies as SSI. What Mr. MacLean is therefore asking this Court to do is to hold / that when an earlier Congress passed the WPA, it thereby prohibited later
Congresses from directing agencies to pass non-disclosure regulations. Neither party explains, however, why Congress cannot require another entity to add specificity in describing the particular types of matters that Congress wanted
47 Case: 11-3231 Document: 33 Page: 55 Filed: 05/30/2012
Withheld from public view; there is no support for the radical proposition that
Congress is prohibited from delegating that task when it believes that an agency has expertise appropriate to accomplish it.
The Board's holding in this case is that when an agencyhas adoptednon- disclosure regulations pursuant to a specific Congressionalmandateto do so, the agency may discipline the employee who violates that non-disclosure regulation without regard to the WPA. That holding is an appropriate balancing of the competing interests that Congress addressedwhen it passedthe WPA andwhen it required TSA to prohibit the disclosure of SSI. In passing the WPA, Congress wanted to prohibit agenciesfrom disciplining employeesfor disclosing waste, fraud, or abuse,but did not want to permit employees to disclose certain sensitive information. In this case,Congress has ordered the agencyto delineatethat information.
Mr. MacLean and amici argue that even though Congress specifically ordered the agency to promulgate those non-disclosure regulations, the WPA nonetheless prohibits an agency from disciplining an employee for violating those regulations. It is difficult to envision why Congress would order the agency to promulgate regulations if Congress believed that the WPA prevented the agency from enforcing them. In effect, Mr. MacLean and amici's argument would make
48 Case: 11-3231 Document: 33 Page: 56 Filed: 05/30/2012
irrelevant Congress's order that the agency issue those regulations, as those parties believe that Congres s must itself complete that task.
Finally, both Mr. MacLean and amici rely upon the Whistleblower
Protection Enhancement Act, which Mr. MacLean notes is "near passage," to support their contention that the Board's holding is inconsistent with
Congressional intent. Pet Br. at 54. While the Board's holding may be
inconsistent with some members of Congress' intent, however, the Whistleblower
Protection Enhancement Act has not passed, and is not law. This Court cannot, therefore, rely upon the sentiments expressed by its sponsors. Indeed, the fact that some members of Congress believe that another statute is necessary is itself evidence that the language of the statutes in effect do not have the effect those members would prefer. Ultimately, as the Board recognized, if Congress wants to alter "the competing legislative objectives underlying these statutes," that task is
"for Congress, not the Board." JA12. The same can be said of this Court. At its core, what Mr. MacLean is asking this Court to do is to hold that when an earlier
Congress passed the WPA, it thereby prohibited later Congresses from directing any agency to promulgate regulations prohibiting disclosure of certain information.
There is no evidence that Congress wished that result. Should Congress wish to strike a different balance than the one the Board skillfully crafted in its decision in this case, Congress is, of course, free to do so.
49 Case: 11-3231 Document: 33 Page: 57 Filed: 05/30/2012
CONCLUSION
For the foregoing reasons, we respectfully request that the Court affirm the decision of the Board.
Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General
JEANNEE. DAVIDSON Director
TODD M. HUGHES Deputy Director
MICHAEL P. GOODMAN Trial Attorney U.S. Department of Justice Civil Division PO Box 480 Ben Franklin Station Washington, DC 20044 Tel: (202)305-2087
May 30, 2012 Attorneys for Respondent-Appellee
5O Case: 11-3231 Document: 33 Page: 58 Filed: 05/30/2012
CERTIFICATE OF COMPLIANCE PURSUANT TO RULE 32(a)(7)(B)
Pursuant to Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure, respondent-appellee's counsel certifies that this brief complies with the Court's type-volume limitation rules. According to the word-count calculated by the word processing system with which this brief was prepared, the brief contains 12,094 words. Case: 11-3231 Document: 33 Page: 59 Filed: 05/30/2012
APPENDIX Case: 11-3231 Document: 33 Page: 60 Filed: 05/30/2012
SUPPLEMENTAL APPENDIX
SSI Policies and Procedures ...... SA 1- t 3
Mr. MacLean' s Acceptance of Conditions of Employment ...... SA 14-!16
Report of Investigation and Attachments ...... SA17-43
Final Order on SSI ...... SA44-45 ! Proposal to Remove ...... SA46-48
Notice of Removal ...... SA49-51
MacLean's Response to Proposal to Remove ...... SA52-64
MSPB Hearing Transcript Excerpts ...... SA65-69 Case: 11-3231 Document: 33 Page: 61 Filed: 05/30/2012
\j \J
No,,,ember 13, 2002 INTERIM SENSITIVE SECURITY INFORMATION (SSI) POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL
1. PURPOSE. To specily the raquiremenls that must be implemented immedlately by all employees and contractors covered under paragraph 3 of this document to mark, store, control. Iransmit, destroy, and manage the release or _thholding of Sensitive Security Information (SSI). This policy covers SSI in every form in which it is stored, including paper, electronic, magnetic, and other media. This policy contains the minimum standards for employees and contractors to mark, store, control, transmit, and destroy SSI.
2. BACKGROUND. Sensitive Secudty Information is a specific category of information that requires protection against disclosure. 49 U.S.C. 40119 limits the disclosure of information obtained or developed In carrying out certain security or research and development activities to the extent that it has been determined by the Under Secreta_ that disclosure of the Information would be an unwarranted invasion of personal privacy; reveal a trade secret or privileged or confidential commercial or financial information; or be detrimental to the safety of passengers In transportation. Although it is subject to certain legal disclosure limitations, SSI is not classified national security information subject to the handling requirements governing classified information.
The specific information that falls wlthin the scope of the statute is prescribed by regulation at 49 CFR 1520. The purpose of this provision is to prevent Unauthorized ' disclosure of information that could cause any of the harms listed above, while being mindful of the publiG's legitimate interest in, and right to know, transportation information. Limiting access to this information is necessary to guard against those who pose a threat to transportation security and their ability to develop techniques to subverl security measures.
3..SCOPE. This policy memorandum prescribes direction to Federal employees and contractors regarding the controt, safeguarding, and release of SSI in ell of its paper, electronic, magnetic, and other forms. All TSA contracts must include provisions requiring contractors to handle SSI in accordance with this intedm guidance.
4. Designation Authority for SSt. The Under Secretary of Transportation for Secudty has the authority to designate information as SSL Appendix 1 identifies the types of documents/informatlon that.are currently designated as SSI. Information not designated as SSI in 49 CFR !520.7(a) through (j) and (I) through (0 will be categorized as $SI only upon a written determination by the Under Secretary that such categorization is necessary in the Interest of the safety of persons in transportation. Olfices wishing to have additional information designated as SSI must make this request in writing to the Under Secretary.
5. DEFINITIONS.
a. Sensitive Secudt¥ Information (SSI). Records and information specified tn 49 CFR 1520.7 (a) through (r). See Appendix 1, Sensitive Security Information (SSI).
b. SSI Distribution Limitation Statement. The statement that is applied to SSI that provides explicit direction concerning the resldctions Which apply to the information or records. It states the aulhodty for controlling distribution and specifies, when
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© ©
November 13, 2002 INTERIM SENSITIVE SECURITY I_FORMATION (SSD POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL appropdate, the distribution approval procedures.
c. Need to Know Federal Employees and Contractor Employees - A Federal employee has a need to know SSI when access to the information is necessary for the employee to accomplish official duties. A oontraGtor employee has a need to know SSI when access to the Information is necessary for the employee to carry out e requirement of a Federal contract relating to transportation security.
d. Need to Know - Re_lulated Parties and others. For specific SSI, the designation authority may make a finding that only specific persons or c!asses of persons have a need to know, Otherwise, a regulated party has a need to know SSI in each of the following circumstances:
(1} When the person needs the informatJor_ to carry out transportation security duUes.
(2) When the person needs the information to supervise or otherwise manage individuals carrying out transportation security duties.
(3) When the person needs the information to advise an operator, carder, or other affected entity regarding transportation security duties.
(4) When the person needs the information to represent an operator, carder, or other person receiving information under the provisions of section 1520.3(d) in connection with any enforcement proceedings.
e. Record. Includes any writing, drawing, map, tape, film, photograph, or other means by which information is preserved, regardless of format. This includes paper, _electronic, and magnetic media.
SECTION 1 - PROTECTIVE MARKING AND LIMITED DI .STRIBUTION STATEMENT FOR SSI
6. P,.ESPONSIBILITY. A person who,creates a record containing SSI must, in accordance with this section, include a protective marking and limited distribution statement that clearly identifies the information as SSI and specifies the disldbution tirnitat_on required. A person who receives a record containing SSI that is not marked in accordance _vith this section must apply such marking and inform the sender of its omission.
• 7. REQUIREMENTS FOR PROTECTIVE MARKING AND LIMITED DISTRIBUTION STATEMENT,
a. Protective Markinq. The protective marking cons)stieg of the words "SENSITIVE SECURITY INFORMATION" must be applied to all documents that contain SSL This marking should be wri[len or stamped in plain style bold type. Times New Roman and a font size of 16, or an equivalent style and font size.
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:+__
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Nov_nber 13, 2002 ]N'I'ERIM SENSITIVE' SECURITY INFORMATION (SSI) POLIC1ES AND PROCEDURES FOR SAFEGUARDING AND CONTROL
b. Distribution Limitation Statement. The distdbution limitation statement must be apolied to all documents that contain SSI. This statement should be mitten or stamped In plain style bold type, Times New Roman and a font size of B, or an equivalent style and font size.
"WARNING: This document contains Sensitive Secur!ty Information that is controlled under 49 CFR 1520. No part of this document my be released to persons without a need to know, as defined in 49 CFR 1520, except with the written permission of the Under Secretary of Transportation for Security, Washington, DC. Unauthorized release may result in civil penalty or other action. For U.S. Government agencies, public release Is governed by 5 U.S.C. 552."
8. Marklnq Requirements For SSI Documentation. These marking requirements apply to all reco[ds containing SSI that are created subsequent to the dateof this policy memorandum, and to all existing records containing SSI, prior to their release.
a. Documents.•
(1) Protective Markinq_ The proteclive marking must be applied at the top of the outside of any front cover (including a binder or folder), on the top of any title page, on the top of the first page and each subsequent page, and on the top of the outside of any back cover (including a binder or folder).
(2) Distribution Limitation Statement. The distribution limitation statement must be applied at the bottom of the outside of any front cover (including a binder or folder), on the bottom of any title page, on the bottom of the first I_age and each subsequent page, and on the bottom of the outside of any back cover (including a binder or folder).
b. Charts, Maps and Drawinqs.
(1) Protective Markiqq_ Charts, maps, and drawings designated as SSI must have the appropriate protective markings affixed in a manner that it is plainly vlslble.
(2) Limited Distribution Statement. Charts, maps, and drawings must have the appropriate distribution limitation statement affixed in a manner that it is plainly visible.
c. Motion Picture Films and Video Recordin_qs.
(1) Protective Markinq and Distribution Limitation Statement. The protective marking and distribution limitation statement must be applied at the beginning and end of each reel and affixed in such a manner that it is tully visibte on the screen or monitor.
(2) Motion Picture Reels. Motion picture reels that are kept in film cans or other containers must have protective markings and distdbulion limitaUon statements. The protective marking and distribution limitation statements must be applied to each side of each reel and to all sides of each can or other storage container. In addition to
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November 13, 2002 INTERIM SENSITIVE SECURITY INFORMATION (SSI) POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL-
reproducing the protective markleg and distribution limitation statement on the beginning and end portions of the film, if the moron picture film has a soundkack, audible.warnings thai describe the protective marking and distribution limitation statement must, if practicable, be included in the introduction and at the end of the film,
• (3) Videotape RecordJnqs. Videotape recordings that contain SSI must include on the recordings conspicuous visual protective markings and distribution limitation statements at both the beginning and the end, If practicable. Protective markings and the distribution limitation statement must also be applied on the front and back and on each side of the video case and storage containers.
d. Electronic and Maqnetic Media
(1) Information Extracted from. The SSI protective marking is not required on information in the form of compiled lists of SSI information extracted from eJectronic end magnetic media, However, information in the form of compiled lists of $SI Information extracted from electronic and magnetic media must have the dlstdbution limitation statement affixed on the bottom of the each page containing SSI, and to any cover page and back page. The distribution limitation statement may be applied by the equipment itself on the face of the page provided the distribution limitation statement is cleady distinguishable from the printed text.
(2) Information Contained on. SSI contained on electronic and magnetic media must have protective-markings and the distribution limitation statement applied at the beginning and end of the electronic and magnetic lexL The protective maddng and distribution limitation statement must be displayed In such a manner that beth are fully visible on the screen or monitor when the text is viewed. The protective marking and distribution limitation statement must also be applied to each side of the disk and the disk sleeve[jacket, on the non.optical side of the CD-ROM end both sides of the CD- ROM case. If the.eleclronictmagnetic text has a soundtrack, audible warnings that . describe the protective marking and distribution limitation statement must, if poss_le, be included in the introduction and at the end of this text.
9. T_RANSMITTAL DOCUMENTS. Documents that are used to ti'ansmit SSI but do not themselvescontain SSI must be marked with the distribution limitation statement. In • addition, the following statement must be affixed to the front page of the transmittal document.
"The protective marking SENSITIVE SECURITY INFORMATION and/or the distribution limitation statement on this document are canceled when the attachments containing SSI are removed."
SECTION 2 - STORAGE OF SSI
:10. REQUIREMENT. All Federal employees and contractor employees possessing SSI ere responsible for ensuring that the information end records containing SS! are safeguarded at all times from disclosure to unauthorized personnel. When the SSI for which an individual is responsible Is not under the individuars direct physical control, the
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: Novcmb_ 13, 2002 INTERIM SENSITIVE SECURITY INFORMATION (SSI) POLICIES AND PROCEDURES FOR SAFEGUARDII_G AND CONTROL
individual is responsible for ensudng that it is safeguarded and protected In such a way that it is not physically or visually accessible to persons who do not have a need to know, as defined In paragraph 5 above. For example: when unattended, SSI must be secured in a locked container or office, or other restricted ac_,ess area.
11. KEY AND COMBINATION CONTROL. When an individual responsible for SSI places The material in a locked container, the individual is responsible for ensuring that positive measures are in force to restrict access to the container keys or combination to only individuals with a need to know.
SECTION 3 - CONTROL AND RELEASE OF SSI
•12. AUTHORITY TO RELEASE AND/OR WITHHOLD SSI DOCUMENTS / INFORMATION. Except as provided in paragraph 13, below, the authority to release SSI to persons who do not have a need to know is limiled to the designation authority and any other individual formally designated to act in that capacity.
13. FREEDOM OF INFORMATION ACT (FOIA) REQUESTS. Under 49 U.S.C. 40119, information designated as SSI under part 1520 qualifies for exemption from disclosure under the FOIA based on exemption 3, 5 U.S.C. 552(b)(3).
a. Authority to Deny FOIA Requests. FOIA requests for SSI ar:e processed by the appropriate DOT agency/entity (see, 49 CFR Part 7), except that any dec!sl0n to release SSI must have the concurrence of the Under Secretary of Transportallon for Security.
b Information Requests Received by Re qulated Parties. Requests for Information that are addressed to regulated parties, such as under State and local freedom of information or open records acts, are addressed in 49 CFR section 1520.5(a), which provides that requests foe SSI be referred to the Under Secretary of Transportation for Security. TSA works with operators, carders, and other affected entities to determine what records or portions of records should remain Undlsclesed and what may be released.
c, Release el Records containinq both SSI and Non-SSI. If a record contains information that may not be disclosed under part 1520, but also contains information that may be disclosed, the latter information will be provided in response to a FOIA request, provided the record is not othem, lse exempt from disclosure under FOIA, if it Is practical to redact the iequested information from the record. If it is not practical lo do so, the entire record will be withheld from public disclosure.
14. CONTRACTOR ACCESS TO SSi. Prior to a contractor gaining access to SSI, the contractor must meet the processing requirements established by TSA. (These requirements are being developed and will be added as an appendix to this document at a later date, In the interim, contractors will be bound by non-disclosure agreements and any other limitations in their contracts.)
15. CONTROl. AND RIELEASE OF CONTRACTOR COPIED SSI. Contractors musl
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November 13, 2002 INTERIM SENSIT_rE SECURITY INFORMATION (SSI) POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL_ provide prior notiticalion in writing, through the Contracting Officer, to the originator of SSI when the contractor needs to make copies oISSI. This written notification must contain the following minimum information:
a. Positive identification of SSI (|itte, document numbers as applicable, etc.).
b. Purpose for making the copies.
c, Quantity of copies.
d. Dissemination of copies (the contractor must vedty and ensure that ell recipients are authorized to receive SSI.).
16. RELEASE OF..SSI TO GOVERNMENT OFFICIALS/EMPLOYEES AND REGULATED PARTIES. Release of SSI is permitted to federal, state and municipal government officlel_lemployaes and regulatedparties who have a need to know as established by regulation _)r authorized by the Under Secretary.
17. RELEASE OE._SI TO LOCAL LAW ENFORCEMENT OFFICIALS AND FEDERAL INTELLIGENCE AGENCIES. Release of 8SI is permitted to federal, state and tocal law enforcement officials, or to federal intelligence agencies who have a need to know as established by regulation or authorized by the Under Secretary.
18. REQUESTS FOR SSI FROM A FOREIGN GOVERNMENT AND/OR OTHER FOREIGN OR INTERNATIONAL ENTITY. Requests for SSI must be referred to the Under Secretary of Transportation for Security.
19. OTHER REQUESTS FOR SSL Requests for SSI other than under paragraphs 13, t 5. 16, 17and 18. above, must be referred to the Under Secretary of Transportation for Securily,
20, INADVERTENT RELF_SE OF SSI. An employee with knowledge of an inadvertent release of SSI must immediately notify the originating authority.
SECTION 4 - PACKAGING AND TRANSMrl-rlNG 8SI
21, RESPONSIBILITY. The term "SSI transmission" refers to the means used to transfer SSI from one location to another, A transfer may involve the physical relocation, or the electronic transmission of information. In either case, the individual responsible for the SSI is also responsible for ensuring that the material is packaged and/or transmitted in accordance with the requirements in this guidance.
22. PACKING AND TRANSMISSION REQUIREMENTS FOR SSI. When assembling a package containing SSt for transmission, it is the responsibility of the individual prepadng the package to ensure thai all SSI has the appropriate protective markings and distribution limitation statements.
a, Mai,_.J.SSI may be transmitted by U.S. Postal Service firsl class mail or regular
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No_'_mbct13,2002 INTERI_I SENS]TIVE SECURITY INFORMATION (SSI) POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL parCel post, or by other delivery services (Federal Express, UPS, etc). SSI that Is to be sent by mail or by a delivery service must be wrapped in opaque envelopes, wrappings, or cartons. Addressing the package with an attenlion line containing the name and office of the recipient helps to ensure that the SSI matadal is received and opened only by authodzed pemonnel.
b. Interoffice mail. When sent by interoffice mail, SSI must be transmitted In a sealed envelope in such a manner as to prevent inadvertent visual disclosure.
c. Hand carryin,q within or between buildin.qs. SSI that is carded by hand within or between buildings must be protected (by a cover sheet, protective folder, dis_bution pouch, etc.) to prevent inadvedent visual disclosure.
d. Packa.qtnq material. Envelopes or containers must be of such strength and durability that they will provide physical protection during transit and will prevent items from breaking out of the containers or envelops.
23. ELECTRONIC TRANSMISSION OF SSI. When transmitting SSI over telecommunications circuits, the following procedures apply.
a. Electronic Mail or Web Postinq. SSI transmitted by e-mail must be in a password- protected aflachment. SSI is not authorized for posting on the intemet/intranet except tar postings on secure sites as specifically authorized by the Under Secretary. (see, Appendix 2).
b. Facsimile.
(1) The sender must confirm that the facsimile number of the recipient is current and valid.
(2) If the recipient has a facsimiM machine in a controlled area where unauthorized persons cannot intercept the SSI facsimile, the sender may send the SSI facsimile without requiring that the recipient be there to receive it promptly. Otherwise, the sender must ensure that en authorized recipient is available at the receiving location to promptly retrieve the information.
(3) The information to be transmitted must have a cover shee t that dearly identiF=es the sender's name end telephone number and contains a warning that if the message is received by other than the intended recipient, the individual receiving the message must immediately notify the sender for disposition instructions.
c. Telephone. The caller must ensure {hat the person receiving the SSI Is an authorized recipient. The risk of interception and monitoring of conversations is greater when using cellular telephones and cordless telephones, which transmit the conversation to a base unit. IndNiduals needing to pass SSI by telephone must avoid these devices unless the circumstances are exigent, or the transmissions are encoded or otherwise protected.
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Novcmb_ 13, 2002 INTER1M SENSITIVE SECURITY hNFORS_ATION (SSI) POLICIES .Z_ND PROCEDURES FOR SAFEGUARD[NG AND CONTROL-
SECTION 5 - DESTRUCTION OF SKI
24. REQUIREMENT. When copies of records containing SSI are no longer needed, they must be promptly and completely destroyed.
25. METHODS. The objective of a selected desL,uctien method is to destroy the material so that recovery of the sensitive information ts difficult, if net impossible. Material conlal_ng SS! must be destroyed by one of the following methods, listed in order of preference:
a. Any means approved for the destruction of national security classified material as specified in appticable orders regarding the destruction of national security classified material. The approved means include burning, pulping, crosscut shredding, melting, chemical decomposition and mutilation. Because of the potential hazards posed to employees and the environment by melting, chemical decomposition, and mutilation, use of any of these methods must be carefully considered.
b. Tearing it into small pieces and assimilating it with other waste material. When destroying SSI by hand, it must be cut or tom into pieces measuring not more than 1/2 inch on a side, and mixed with other wastepaper material in the process.
26. CONTRACTOR NOTIFICATION OF DESTRUCTION OF SSL When a contractor proposes to destroy copies of records containing SSI, the contractor must first provide. notification in writing, through the Contracting Officer, to the information originator of ffs destruction. The contractor must provide the following minimum information regarding the destruction of SSI:
a. Identification of the Information to be destroyed, (title, documen(/copy numbers(s as applicable, ate.).
b. Quan_ies of copies destroyed.
c. Date. and place of destruction.
d. Method of destruction.
e. Residual SSI remaining in custody of the contractor.
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Hovcmbcr 13, 2002 .iNTERIM SENSITIVE SECURITY INFORMATION (SSI) POLl CIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL
APPENDIX 1
SENSITIVE SECURITY INFORMATION (SSI)
1. GENERAL. Except as otherwise provided in writing by the designation authority as necessary in the interest of the safety of persons in transporlation, this appendix lists the information and records containing such information that constitute SS| as listed in 14 CFR 1520.7.
2. INFORMATION CONSTITUTING SSI.
(a) Any approved, accepted, or standard security program under the rules Iisled in §1520..5(a)(1) through (6), and any security program that relates to United States mail to be transpoded by air (including thal of the United States Postal Service and of the Department of Defense); and any comments, instructions, or implementing guidance pertaining thereto.
(b) Security Directives and Information Circulars under §1542.303 or §1544.305 of this chapler, and any comments, instructions, or implementing guidance pertaining thereto.
(c) Any selection criteria used in any security screening process, includlrig for persons, baggage, or cargo under the rules listed in §1520.5[aX1) through (6).
(d) Any security contingency plan or information and any comments, instructions, or implementing guidance pertaining thereto under the rules listed in §f520.5(a)(1) through (6).
(e) Technical specifications of any device used for (he deteclJon of any deadly or- dangerous weapon, explosive, incendiary, or destructive substance under the rules listed in §1520.5{a)(1) through (6).
(f) A description of, or technical specifications of, objects used to test screening equipment and equipment parameters under the rules listed in §1520.5(a)(1 ) through (6).
(g) Technical specifications of any security communications equipment and procedures under the rules listed in §1520.5(aX1 )through (6).
(h) As to release of informalion by TSA: Any information that TSA has determined may reveal a systemic vulnerability of the aviation system, or a vulnerability of aviation facilities, to attack_ This includes, but Is not limited to, details of inspections, investigaBons, and alleged violations and findings of vlolalions of 14 CFR parts 107, 108, or 109 and 14 CFR 129.25, 129.26, or 129.27 in affect prior to November 14, 2001 (see 14 CFR parts 60 In 139 revised as of January 1, 2001); or parts 1540, 1542, 1544,
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Nov=tuber ]3, 20D2 INTERIM SENSITIVE SECURITY INFORI3.LAT1ON (SS]D POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL
1546, 1548, or §1550.5 of this chapter, and any information that could lead the disclosure of such details, as follows:
(1) As to events that occurred less than 12 mong_s before the date Of the re!ease of the information, the following are not released: the name of an aiq3ort where a violation occun-ed, the regional identifier in the case number, a description of the violation, the regulation allegedly violated, and the identify of the aircraft operator in connection with specific locations or specific security procedures. TSA may release summaries of an aircraft operator's total security violations in a specified time range without identifying specific violations. Summaries may include total enforcement actions, total proposed civil penalty .amounts, total assessed civil penalty amounts, number of cases opened, number of cases referred to TSA or FAA counsel for legal enforcement action, and number of cases closed.
[2) AS to events that occurred 12 months or more before the dale of the release of information, the specific gate or other location on an airport where an event occurred is not released.
(3) The identity of TSA or FAA special agent who conducted the investigation or inspection.
(4) Security information or data developed during TSA or FA.A evaluations of the aircraft operators and airports and the implementation of the security programs,. including aircraft operator and airport inspections and screening point tests or methods for evaluating such tests under the _les listed tn §1520.5(a}(1) through (6).
(i) As to release of information by TSA: Information concerning threats against transportation.
(j) Specific delails of aviation security measures whether applied directly by the TSA or entities subject to the rules listed in §1520,5(aX1) 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,
(k) Any other information, the disclosure of which "[SA has prohibited under the criteria of 49 U.S.C. 40119.
(I) Any draft, proposed, or recommended change to the information and records Identified in this section.
(m) The locations at which particular screening methods or equipment are used under the rules listed in §1520.5(a)(1) through (6) if TSA determines that the information meets the criteria of 49 U.S.C. 401 lg.
(n) Any screener test used under the rules listed in §1520.5(a)(;I ) through (6).
(o) Scores of tests administered under the rules listed Jn§t520.5(aX 1 ) through (6).
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Novc'rnber13,2002 INTERIM SENSITIVE SECURITY INFORMATION (SS]) POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL
(p) Performance data from screening systems, and from testing of screening systems under the rules listed in §1520.5(a)(1 ) through (6).
(q) Threat images and descriptions ol threat images for threat image projection systems under the rules listed in §1520.5(a)(1) through (6).
(r) Information in a vulnerability assessment that has been authorized, approved, or funded by DOT, irrespective of mode of transportation.
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Novcmb_ 13, 2002 INTERIM SENSITIVE SECURITY INFORMATION (SSI) POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL --
APPENDIX 2
THE ELECTRONIC POSTING/TRANSMISSION OF SENSITIVE SECURITY INFORMATION (SSI)
1. WE8 POSTING. All SSI information can only be posted on TSA approved web sites. Such sites must be approved by and comply w'd.h the standards established by Ihe Office of Information Security, in the office of the Chief Informatic_n Officer (CIO), and authorized by the Under Secretary. Neither the TSA intemet nor the internal intranet are presently approved for posting sSI material. However, the CIO's office has authorized limited secure intranet web sites for this purpose. For questions regarding such web sites and their usage, please send your e-mail Inquiries to [email protected],gov.
2. ELECTRONIC TRANSMISSION, All SSI information transmitted via e-mall must be password protected via standards established by the Office of Information Security (InfoSec), in the office of the Chief Information Officer (CIO). InfoSec has authorized the continued use of Microsoft word end data processing software provided the standards for PaSSWord protection listed under sec.(a) are used.
a. Minimum standards for transmission between TSA employees.
(1) Password criteria. Passwords used shall conform to the following guidelines - eight character minimum length, - at least one letter capitalized. - contain at least one number, - not be a word In the dicllonary.
(2) Duration and Usage. Passwords shall have a working lile of no more than ninety (.90) days from creation. Passwords may be applied to multiple documents between the sender/receiver(s) for those days.
(3) Communicating Passwords. Sender shall transmit password to receiver(s) by alternate means other '_an e-mail, Le. telephone or fax. Use of celtutar or cordless phones is restricted as provided under paragraph 21(c).
(4) Non-Applicability for Classified Information. This procedure shelf not be used for transmission of classified information,
(5) Password Creation. System owners are responsible for password creation • and maintenance.
b. Administration of Passwords
(1) One commor_ password, subjecl to the g0 day limitation of paragraph 2(a}(2) of this appendix, is authorized for all SSI documents transmitted between TSA.employees.
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Nowmbcr 13,2002 INTERIM SENSITIVE SECURITY INFORMATION (SSI) POLICIES AND PROCEDURES FOR SAFEGUARDING AND CONTROL
• (2) A separate but common password, subject to the 90 day limitation of paragraph 2(a)(2) of this appendix, is authorized for all SS! documents transmitted to non-TSA employees with a need to know.
(3)The office of Security Regulation.and Policy will establish the common passwords in accordance w_thsection 2(a) of this appendix. ]-SA employees shouli:l direct any questions regarding passwords to their individual organizations.
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CONDITIONS OF EMPLOYMENT FOR . FEDERAL AIR MARSHALS
1. Federal Air Marshals (FAM's) are on on-call 24 hours a day and are expected to be available for unscheduled deployments and emergency assignments.
2. FAM's perform regular and extended travel, both foreign and domestic, for several weeks at a time. They can be on travel status in excess of 60% of the work year.
3. FAM's are subject to drug and alcohol testing in accordance with DOT Order 3910.1C, Drug and Alcohol-Free Departmental Workplace.
4. FAM duties meet the definition of law enforcement work as defined by 5 U.S.C., and FAM positior_s are covered by the 20- or 25-year retirement provisions of 5 U.S.C. 8336(c)(1) and 8412(d) for law enforcement officer positions.
5. An individual may be removed fro m the position of FAM for any lawful reason including but not limited to, the following conditions:
p a. Failure to pass training requirements• b. Failure to obtain or maintain a top secret security clearance based on a favorably adjudicated special background investigation. c. Failure to maintain medical standards for FAM positions. d. Failure to maintain firearms qualifications. e. Failure to participate in all elements of the FAM physical fitness program. i". Inability to perform an essential job function of the position. g. Unauthorized release of security-sensitive or classified information. h. Conviction of a misdemeanor crime &domestic violence (compliance with the Lautenberg Amendment, P.L. 104-208, section 658). i. Failure to comply with the terms ofthe Standard Operating Procedures for FAM's.
Reassignment to at/other position under these circumstances will depend on agency needs, availability of an appropriate position, and any other factor the agency deems appropriate. In the case of medically non-qualified employee, consideration for placement will be in accordance with current agency policy. If reassignment is not made, employment with the FAA will be terminated.
Acknowledgement and Acceptance
I accept the position of Federal Air Marshal. I have read and Conditions of Employment.
__ I decline the position of the Federal Air Marshal•
'S_nature Date
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TSA ] Transporlation Security/-• 1ministration I Print f_, Page ! of 2 _.,._,"
_Print
Transportation Security Administration - Federal Air Marshal
SV-1801 Pay Band-G/H/I .
Key Duties and Responsibilities:
The Federal Air Marshal Service (FAMS) promotes confidence in the Nation's civil aviation system through the effective deployment of Federal Air Marshals to detect, deter and defeat hostile acts targeting U.S. air carriers, airports, passengers and crews. Federal Air Marshals administer, coordinate, supervise or perform investigative, analytical, or advisory work to enforce federal laws, regulations, or other mandatory guidelines; make arrests without warrants for any offense against the United States with probable cause; and identify and interview witnesses and suspects. Federal Air Marshals also participate In multi-agency task forces and land-based investigative assignments Involving other Federal, state, and local governments; participate in surveillance, surveillance detactlon, counter surveit!ance; and carry out undercover and covert work assignments.
Requirements:
FAMs must be younger than thirty-seven at the time of appointment and must demonstrate the ability to withstand the physical demands of the Federal Air Marshal Service by meeting stringent health and medical requirements. See the full announcement for health/medical requirements and requirements for being hired at the G, H, and I Bands.
Competencies:
• Oral Communications: Makes clear and convincing oral presentations to individuals or groups; listens effectively and clarifies Information as needed; facilitates an open exchange of ideas and fosters atmosphere of open communication. • Problem Solving: Identifies and analyzes problems; distinguishes between relevant and irrelevant information to make logical decisions; provides solutions to Individual and organizational problems. J Team Building: Inspires, motivates, and guides others toward goal accomplishment. Consistently develops and sustains cooperative working relationships; encourages an d facilitates cooperation within the organiz&tion and with customer groups; fosters commitment, team spirit, pride, and trust. Develops leadership in others through coaching, mentoring, rewarding and guiding employees. • Written Communication: Expresses facts and ideas in writing in a succinct and organized manner. • Technical Credibility: Understands and appropriately applies procedures, requirements, regulations, and policies related to specialized expertise; able to make sound hiring and capital resource decisions and to address training and development needs; understands linkages between administrative competencles and mission.
Conditions:
Federal Air Marshals are trained in the use of and must carry firearms. The FAN tour of duty includes 24-hour per day on-call status, and rAMs may be required to work nights , weekends and holidays. Recu.r_ing overnight travel is required. Federal Air Marshals are required to participate Ir
http://tsaweb.tsa.dot.gov/isaweb/display?cont ent=0900051980196284&print=yes 6/l/2006
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TSA [ Transportation Security" _ministration [ Print e" _ Page 2 of 2 \ .;
the FAM Fitness Program which includes quarterly physical fitness assessments. As a condition of employment, FAMs sign a Nobility Agreement acknowledging that duty location Is determined by the needs of the FAMS; therefore, they may be reassigned to different geographic locations throughout their tenure.
Training:
Federal Air Marshals begin their service by attending a seven-week residential training course in Artesia, New Mexico, followed by an additional seven weeks at the FAMS Training Academy in Atlantic City, New Jersey. The employee must reside at each location for the duration of the training.
Duty Location:
Nationwide
Visit USAJOBS to see if this position Is open and to view other TSA positions.
R.._e.turnto TSA list
Table of Contents
http:/Itsaweb.tsa.do(.gov/tsaweb/display?content=09000519801962 84 &print=yes 6/!/2006
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Department of Homeland Security Immigration & Customs Enlorcement Office of ProfessionaI Responsibility
Office of Professional Responsibility Report of Investigation
MACLEAN, Robert Federal Air Marshal Los Angeles, CA II 200405873 III
WARNING OPR SENSITIVE DOCUMENT HAND CARRY OR REGISTERED MAIL ONLY STORE IN SAFE OR LOCKED CONTAINER
THIS OOCUMF_.NT CONTAINS INFORMATION REGARDING CURRENT AND ON-GOING ACTIVITIES OFA SENSITIVE NATURE. IT IS FOR*I-HE EXCLUSIVE USE OF OFFICIAL U.S. GOVERNMENT AGENCIES AND REMAINS THE PROPERTY OF THE OFFICE OF PROFESSIONAL RESPONSIBILITY. IT CONTAINS NEITHER RECOMMENDATIONS NOR CONCLUSIONS OF THE OFFICE OF PROFESSIONAL RESPONSIBILITY.
DISTRIBUTION OF THIS DOCUMENT HAS BEEN UMITED AND FURTHER DISSEMINATION OR REPRODUCTION ARE PROHIBITED WITHOUT PRIOR WRI33"EN AUTHORIZATION OF THE ORIGINATOR.
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INVESTIGATIVE RECORD REVIEW
PLEASE READ AND SIGN BELOW
This file contains information from the Of_ce of Internal Affairs, and is subject to the provisions of the Privacy Act of 1974. It is the property of the Office of Internal Affairs and is loaned to you for official purposes only,
This material must be safeguarded from unauthorized disclosure. It should not beleft. unattended nor discussed with unauthorized persons. Those individuals who review this mater_at are required to complete the bottom portion of this form.
This file or any portion thereo! may not be released to, reviewed by or reproduced by any person, other than someone acting in his or her official capacity who has a need to review the report; without the expressed written consent of the Office of Internal Affairs.
CASE NUMBER I MACLEAN,SUBJECT Robert 200405873
REVIEWED BY
13ATE NAME SIGNATURE • REFERRED TO
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IA S E NS I T I VE DEPARTMENT OF HOMELAND SECURITY i. TECS ACCESS CODE: 3 ICE 2. PAGE : 1 REPORT OF INVESTIGATION 3. FILE ID: 200405873
4. TITLE: _LACLEA/q, ROBERT /TRAN/NON-CRIMINAL HISCON /DISTRICT O DC
5. FILE STATUS: CLOSING RPT
6. REPORT DATE [7. ASSIGN DATE 8. CLASS 9. FILE DESC CODES _I0. RPT N BR.
06162005 1 09162004 I 2 INO ] 003 iI. RELATED FILE IDS:
12. UNDVL LEADS TO:
13. TYPE OF REPORT: INVESTIGATIVE FINDINGS
TOPICz UNAUTHORIZED MEDIA APPEARANCE - SUBSTANTIATED
14. SYNOPSIS: On September 17, 2004, the U.S. Iimnlgration and Customs Enforcement, Office of Professional Responsibility, Joint Intake Center, Washington, DO, received a Conduct Incident Report from the Department of Homeland Security, Inunlgration & Customs Enforcement, Federal Air Marshal Service. The report alleges that Federal Air Marshal Robert J. MACLEAN, Los Angeles, made an unauthorized media appearance on the NBC Nightly News television program.
All additional allegation of unauthorized release of information to the media was also uncovered during the course of the investigation.
i15. DISTRIBUTION: 16, ORIGINATOR: RUZEVICH THOMAS J CH (TITLE) CRIM INVSTGR
17. APPROVED BY: GIBBONS JAMES M (TITLE) SUPV3f CRIM INVSTGR
18. ORIGIN OFFICE: CH 119. PHONE: 847 981 3400 CHICAGO I20. TYPIST: RUZEVICH IA S E N S I T I V E THIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS THE PROPERTY OF TH DEPARTMENT OF HOMELAND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OF THIS DOCUMENT OR INFOR_4ATION CONTAINED HEREIN SHOULD BE REFERRED TO ICE HEADQU TERS TOGETHER WITH A COPY OF -"_{E DOCUMENT.
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I A S E N S I T IV E
DEPARTMENT OF HOMELAND SECURITY ICE FILE ID: 200405873 REPORT OF INVESTIGATION CONTINUATION REPORT NUM3ER: 003
BACKGROUND :
On September 17, 2004, the U.S, Irmaigration and Customs Enforcement (ICE), Office of Professional Responsibility {OPR), Joln£ Intake Center (JIC), Washington, DC, received a Conduct Incident Report (CIR) from the DHS ICE Federal Air Marshal Service (FAMS). The report alleges that Federal Air Marshal (FAM) Robert J. MACLEAN, Los Angeles, California, made an Itnauthorized media appearance on the NBC Nightly News television program (Exhibit i) . An additional allegation of unauthorized release of information to the media was also uncovered during the course of the investigation.
ALLEGATION ONE: Unauthorized Media Appearance. SUBSTANTIATED
ALLEGATION TWO: Unauthorized Release of Information to the Media. SUBSTANTIATED
DETAILS OF INVESTIGATION:
ALLEGATION O]TE: Unauthorized Media Appsnrance
On May 04, 2005, OPR/Chlcago Senior Special Agent (SSA) Thomas J. Ruzavieh and Resident Agent in Charge {RAt) James M. Gibbons conducted an interview of FAM MACLEAN. Prior to conducting the interview, FAM MACLEAN was provided with the following documents for his review and signature:
1. Administrative Interview Notice of Rights and Obligations (FAMS Form OMS F 2130 July 04).
2. Disclosure Warning for Non-Bargaining Unit Employees (Appendix C).
During the interview FAM MACLEAN admitted to appearing on the NBC Nightly News television broadcast on September 9, 2004, as the subject shown wearing a hood and identified only as FAM "Mike." FAM MACLEAN adm/tted that he did not obtain authorization from FAM management prior to making the aforementioned media appearance. FAMMACLEAN denied knowingly releasing, in any form, sensitive, secure, or classified information to any unauthorized persons groups, or associations. Following the interview, FAM MACLEAN provided OPR/Chicago with an affidavit dated May 4, 2005 (Exhibit 2).
ALLEGATION TWO: Unauthorized Release of Information to the Media.
I A S EN S I T I V E THIS DOCUMENT, LOANED TO YOU FOR OFFICIAL USE ONLY, REMAINS TJ{E PROPERTY OF TH DEPARTMENT OF HOI_ELJtND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OF THIS DOCLTMENT OR INFORMATION CONTAINED HEREIN SHOULD BE REFERRED TO ICE HEADQU TERS TOGETHER WITH A COPY OF THE DOODMENT.
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I A S EN S IT I V E
DEPARTMENT OF HOMELANDIcE SECURITY i. PAGE_ 3
R E P O R T O F I N V E S T I G A T I 0 N _. F_-ID_ --200405873 c o N T I NUA T I 0 N I_?-_----_-_VMB__ i On May 84, 2005, SSA Ruzevich and RAC Gibbons conducted an interview of FAN MACLEAN. Prior to conducting the interview, FAN _IkCLEAN was provided with the following documents for his signature and/or review:
i. Admlnistrativ_ Interview Notice of _ights and Obligations (_AMS Form OMS F 2130 July 04).
2. Disclosure Warning for Non-Bargaining _Jnit Employees (Appendix C).
During the interview FAM MACLEAN admitted that he spoke to MSNBC reporter Brock Masks regarding three newspaper stories authored by Meeks. FAN MACLEAN admitted to providing Masks copies of FAMS Los Vegas Field Office e-ma_Is that mandated FANS from that office compose one Surveillance Detection Report per month. FAN MACLEAN denied knowingly releasing, in any form, sensitive, secure, or classified information to any unauthorized persons, groups or associations. Following the interview, FAM MACLEAN provided OPR/Chlcago with an affidavit dated May 4, 2005 (Exhibit _,).
On May 4, 2005, FAM MACLEAN pro_ided OPR/Chicago with copies of the below listed items :
I. "Air Marshal pulled from key flights," by Brock Meeks, MSNBC, July 29, 2003 (Exhibit 3) .
2. "TSA in 'witch hunt' Air Marshals Say'," by Brock Meeks, MSNHC, August Ii, 2003 (Exhibit 4).
3. "Air Marshals struggle with Igrowing pains', by Brock Masks, MSNBC, August 4, 2004 (Exhibit 5).
4. "Flip-Flop .on Air Marshal Schedules, " by Brock Masks, MSNBC, July 30, 2004 (Exhibit 6).
5. Six (6) FANS Los Vegas Field Offles inter-offlce e-mails dated from July 7, 2003 thru August _, 2003 (Exhibit 7).
PROEECUTORIAL ACTION: N/A
PREVIOUS HISTORY/PAST ALLEGATION: None.
I A S ENS I T I v E TH_TS DOCUMENT, LOANED TO YOU FOE OFFICIAL USE ONLY, REMAINS THE PROPERTY OF TH DEPARTMENT OF HOMELAND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OF THIS DOCUMENT OR INFORMATION CONTAINED HEREIN SHOULD BE REFERRED TO ICE HEADQU TE!%S TOGETHER _:ITH A COPY OF THE DOCUMENT.
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C> G I A SENSITIVE
DEPARTMENT OF HOMELAND SECURITY ICE FILE ID: 200405873 REPORT OF INVESTIGATION CASE EXHIBITS
i. Copy of Federal Air Marshal Conduct _ncldent Report (CIR) .
2. Affidavit of DHS ICE FAMS Robert J. MACLEAN, dated May 4, 2005.
3. Copy of MSNBC news story "Air Marshal pulled from key flights," by Brock Meeks, July 29, 2003.
4. Copy of MSNBC news story "TSA in wlt_h hunt Air Marshals say," by Brock Neeks, August 11, 2003.
5. Copy of MSNBC news story "Air Marshals struggle with growing pains," by Brock Meeks, August 4, 2004.
6. "Flip-Flop on Air Marshal Schedules," by Brock Meeks, MSIqBC, July 30, 2004.
7. Six (6) FAMS Las Vegas Field Office e-mails dated from July 7, 2003 thru August 4, 2003.
I A S E N "S I T I V E THIS DOCLq4ENT, LOAI_ED TO YOU FOR OFFICIAL USE ONLY, RE/4AINS THE PROPERTY OF TH DEPARTMENT OF }{OMELAND SECURITY, ICE. ANY FURTHER REQUEST FOR DISCLOSURE OF THIS DOCUMENT OR INFORMATION CONTAINED HEREIN SHOULD BE REFERRED TO ICE HEADQU TERS TOGETHER WITH A COPY OF THE DOCUMENT.
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i A verbatim recreation of lhe CAR is provided below.
-Be_-
Las Vegas Field 0.'ffice (LASFO) based personnel believe Federal. Air Marshal (FA.M') Robert L MacLe_ to be the hooded FAM "Mike" who appeared on NB C Nightly News on 919104. Tile F,_vi complained of FAMS policies, implying that terrorists can easily identify and cut .FAM's throats if dress code policies were no_ ch_mged. If stft_stm_tiatc.d, his appearance w6uld be in violation of iniemal dixectives.
SAC David R_. I(!dowlton was on annual leave the week of 9/6-9/} 0104 and did not view the NBC broadcast On Saturday 9/11104, LASFOATSAC John.PlunkeR advised SAC K.nowIlon that F_M MacLean's former supervisor, ATSAC Michael Marzlgliano, had watched NBC Nightly rtcws on 9/9/04 and believed the voice of the hooded FAM to be that of MacLean _ased on his e_tsnsive contact with the FAM.
ON 9/13/04, SAC Knowlton requested FAM Headquarters forward a video copy of the news broadcast _ds0 on.9/13/04 a LASFO FAM on TDY assignment, lvlichaeJ Kopartski , telephonically advised he viewed the broadcast and believed 1he hooded FAM to be MacLeano bksed on voice recognition. SAC Knowlton wason emergency leave the afternoon of9113_r04 and 9/14/04 duc to a death in the family. Tke video was received at the LASFO on 9/i 5/04.
On 9/15/04, ATSAC Marzigliano confuTned what he had told ATSAC .Plunkett, stating to t 9AC Knowlton t_at, based on voice and mannerisms, he unequivocally believed lhe hooded FAM onNBC news 1o be MacLean, whom he had super,:fised. He also advised that subseqnent to the broadcast, other FANS who served with MacLean came to lfim and qpined it was MapLean. Also on 9/15/04, LASFO Operatiolas Officer, Muriel Blackburn, advised she had xliewed the video and opined it was MacLean. She further relaled that her staff had hea_, fxom other LASFO FAMe who viewed the broadoast and complakted k was MaeLean on NBC news. She also advised her staffhad allegedly been informed th_.t MacLean wnb upset that his voice had not been disgu_ed, prompting h.im to request it not be further t,_levised.
Fh3aJJy, on 9/15/_4, tbe video was shown to MaeLean's current __npervisor, AT.qAC Charles Ma_er. _.TSAC Maurer opined that the voice of "Mike _' was probably MaeLean based dn his personal contact with him.
FAM MacLcan Bas been in TDY stattls to Los Angeles pending sJ_e birth era child, which occurred this week. He is currently on Family Medical Le.ave. FAM MacLean has previously aqn. ounced to this office tJmt he is the "FAM vicepresident '_ of the Federal Law Enforcemetg. Officers Association (FLEOA). /Re has not bt_en iutervicwed concerning this matter.
FAM MacLean l{as no previous CIR's! -End-
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DEPARTMENT OF HOMEL_d_D SEC"JRITY U.S. IMMIGRATION & C_JS_MS ENFORCEMENT OFFICE OF PROFESSIONAL RESPONSIBILITY
AFFIDAVIT STATE OF: COUNTY OF:
I, Robert J. MacLean, who after being duly sworn state the following:
Q: Please state your name, current position and post of duty?
A: Robert James Maclean, Federal Air Marshal, assigned Los Angeles Field Office.
Q: How long have you been employed as a Federal Air Marshal with the Department of Homeland Security?
A: Over 3 M years.
Q: What employment have you held prior to becoming a FAM?
A: US Border Patrol Agent - assigned San Diego Sector.
Q: Have you ever been interviewed by any television news organization?
A: Yes.
Q: Have you ever been interviewed by the NBC Nightly News Television program?
A: Yes
Q: Did you appear on the NBC Nightly News television broadcast of September 9, 2004 as the subject show_ wearing a hoed and identified only as FAM _Mike"?
A: Yes
Q:" Did you have prior permission from the Federal Air Marshal m_nagement to appear on the aforementioned television newscast.
A: No
Q: Is that the only time you appeared on any television news program?
A: Yes
Q: What was the purpose of your appearing on the aforementioned television news program?
A: After FJ_MS management ignored mine and other FAMs' concerns regarding FAMs' checkpoint bypass procedures, aircraft boarding procedures, dress / grooming codes, mandatory hotel policy and FAMS managemeDts constant desire to divulge Sensitive SeCurity Information to news organizati6ns such as CNN and NBC Nightly News• I reported
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these problems to the Oakland DHB / OIG office, but no Agents followed- up on my complaint.
Q: Who asked you to appear on the aforementioned television show?
A: Brock Meeks of MSN3C. I know him from 3 other stories I spoke to him about. I handed copies of these 3 articles to the investigators. They are_ Air Marshal pulled from key flights, Brock Meeks, MSNBC, July 29, 2003; Air Marshals struggle with 'growing pain_" by Brock Meeks, MShTBC, August 4, 2004; TSA in 'witch hunt," air marshals say by Brock Meeks, MSN-BC, August ii, 200].
NBC Producers Tom Costello and Marie Garcia from New York, NY conducted my intez-view over a phone line.
I have never provided any documents of any nature to Meeks, Costello and Garcia.
For the August 4, 2003 article, I read Meeks word for word the six July 7, 2004 through August _, 2003 e-mails (submitted to the investigators) that mandated Las Vegas FAMs to compose i Surveillance Detection Report (SDR). This policy was a violation of the law, gross waste of funds, abuse of authority and overall gross mislanagement that endangers public health and safety. Mandating. intelligence reports can misdirect valuable resources and get many people hurt or killed. None Qf these e-mails were labeled having "Security Sensitive Information."
For the July 29, 2003 article, I informed Brock Meeks that .all Las Vegas FAMs were sent a text message to their Government issued mobile phones that all RON (Remain Overnight} missions'up to August S would be canceled. My supervisor told me that the Sei-vice ran out of funds for overtime, pe[ diem, mileage and lodging.
It is FIJ4 policy that Sensitlve Security Information will not be broadcasted via text messages to our Service" issued mobile phones.
Q: Are .you aware of any procedures/policies/directives regarding media contact?
A: Yes --A/gM 3700 (Pare 17} which prohibits contact with the media.
Q: Have you ever released, in any form, be it verbal, written, or otherwise, sensitive, secure, or classified information to any unauthorized person or persons, group or groups, association or associations?
A: No, not to my knowledge.
Q: .If you were to seek permission for a media interview who would you contact?
A: I assume it would be the FAMS Director or the Public Information Office.
Q: Who ts your current supervisor?
A: Jim Murray (ATSAC)
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Q: Have you ever had the following persons act as your supervisor in any capacity (ATSAC Marsigliano, ATSAC Plunkett, ATSAC Charles Maurer)?
A: Yes, I worked under the supervision of ATSAC Mar_igliano for-approx. 1 year, ATSAC Plunke_t may have been Acting ATSAC when ATSAC Maurer was on extended leave he (Plunkett} replaced him temporarily. ATSAC Maurer supervised me for approx, six months just prior to my transfer to the LA Field Office.
.Q: who is LASFO Muriel Blackburn?
A: She is a civilian Operations officer assigned to the Las Vegas Field Office. She did not supervise me in any capacity. I've known her since mid November of 2001.
Q: Do you have anything else to add to your statement at this ti_e?
A: Thomas D. Quinn,. the Director of the Federal Air Marshal Service, ahd his executive staff are setting up commercial aviation for catastrophic failure by violating the l_w, gross waste of funds, abuse of authority and overall gross mismanagement that endangers publ_e health and safety. Their checkpoint bypassing procedures, aircraft preboarding procedures, mandatory hotel •policy, dress and grooming codes and their policy of divulging Sensitive Security Information to the media.
Thomas D. Quirn1's executive staff:
Robert F. Beyers, Deputy Director John Novak, Assistant Director George Papantoniou, Assistant Director Raymond M- Dineen, Assistant Direchor Colleen Callahan, Assistant Director Michael H. Weikert, Assistant Director David Adams, SAC, Seadquart_rs public Information Office
i Only the victims of the 9/11 attacks give me the strength and fortitude to accomplish my missions despite of the constant anxiety of having to eouEter a possible in-flight anlbush made possible due to Director Quinn's deadly policies and gross mismanagement.
Regrettably, the following personnel continue to ignore Director Quinn and his executive staff's gross mismanagement:
Michael Chertoff, DHS Secretary Richard L. Skinner, Acting DHS Inspector General Randy Beardsworth, Acting Under Secretary for Border Transportation & Security Michael J. Garcia, Assistant Secretary of ICE
These individuals must stop allowing Director Quinn and his executive staff to threaten national security and listen to the rational advice of ONE of the only true advocates of commercial aviation security: Federal Air Marshal Frank Terreri.
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f"'!. f "; \.) \i Due to the fact that my chain of command, the DHS OIG and my Congressmen all ignored my complaints and would not follow them up with investigations, I have NO REGRETS or feel NO REMORSE for going to a credible and responsible media representative, Brock Meeks. Brock Meeks reportin9 these gross mismanagement issues has resulted in immediate and positive change in deadly FAMS policies.
The contents of this statement are true and correct to the best of my
knowledge and belief.
Statement consists of 4 pages.
Before _this 4th day Of May 2005,
Immigration & Customs Enforcement Office of Professional Responsibility
Resident Agent in Charge Departmen_ of Homeland Security Immigration & Customs Enforcement Office of Professional Responsibility
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Appendix C
Disclosure Warning for Non-Bargaining Unit Employees_.
Form Department of the Treasury U.S. Customs Service
WARNING TO NOT DISCLOSE INVESTIGATIVE INFORMATION
You are being interviewed as part of a continuing, omcial investigation by the U.S. Cus- toms Service Office of Internal Affairs. As this investigation is sensitive in nature, you are instructed net _o discuss the nature of this interview with any other person(s), except pri- vate legal counsel.
Failure to comply with this directive could subject you to disciplinary and/or criminal action for interfering with or impeding an official investigation.
, have read and understand the above warning.
Date Signature
Appendix C Page 157 ol t57
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ADMINISTRATIVE INTERVIEW
NOTICE OF RIGHTS AND OBLIGATIONS
Before we ask you any questions you must understand your responsibilities as an employee of the U.S. Depadment of Homeland Security, Federal Air Marshal Servicel
This is a purely administrative inquiry: The p#rpose of this interview is La Qbtain your statement to questions concerning t'-P_-o;_. _ ,__. _:,__ _,g__.._k_ (_,.,_i_._
as it relates to your official duties. ¢_L_ \ i
You .have a duty as an employee of the Federal Air Marshal Service to answer questions concerning the performance of your official duties. Your failure to answer questions posed to you, as they relate to your official duties, may cause you to be subjected to disciplinary action, including possible removal. Furnishing false information may result in criminal prosecution:
Any Information or evidence you furnish in response to questions put to you during this interview, or any information or evidence, which is gained through your answers, maybe used against you in administrative proceedings.
I have read the above advisement and understand its contents.
Print Name
. _l_l,,g._--.' "
Witness Name Signalure a_h__.,,_ le
Off,c= of Mission Support FAMS F_rm OMS F 2130 july' 04
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Air Marshals pulled from key flights
fly Brock H./'Recks. MSHBC
July 29, g00], De.spite renewed war_ings'oheu¢ possible _itlln¢ hijackings, th© Teansporti(ion Sccttrity Administration has aic,1 ud fedaral ,iF marshals thDI as or Friday ltc7 will no longer he covering cross -counCt 7 or in_mu=tion=l flights, MSNBC.com hl_ learned. Tic decision In _op c.ovemge on flights thai many cxpcm cons'_dcr to he at the higher dsk of a_ilct apparent ly _tcma from = policy d¢clslon to r=work schedule= so that air marshals don't have to incnr the cxpc,sc of staying ov¢might in hotels.
SEVERAL AIR marshals contacted by MSHBC.com "fuc_day confirmed thai they w=r= nit, led via lext messages on ItCh "l'$A-i=toed cell phunes in check thclr _chodul¢_ rol _hang_.
"All ovcmlghls, stnrllng flora August rlt_ through (ha ninth, were canceled," on air mnlshed told MSNBC.com. "My | suporvi._o r) laid me oversights for all Ifi¢id offices] wrJe h_ing c,_ncclcd rol an it_definite amounl of Ihn¢," said the 01r marshal, who rcquel;ted anollymli_. _Pl'¢ supervisors _aid they only had tinl¢ IO change schadolcs Ih¢ough the nlnth. _
CmTCnt flight sehadules, which run _hrough the end of July. Thursday, are stoyh_g inl_ct, another air maPzhol told MSNBC.com.
Fcdcr_l air marshals arc armed undercover agcid.s dcp(oycd on U.S. airlin_ and authorPzcd (o use d=ud_y force to [hwa_ a tcrroris( tmid_t. P6._¢ to ScpL I I 7.001, IIw._o wer_ o_ly _ few doz¢t_ tm.t_h_ls who t_¢v¢ m_inly _ tn*,cm =_on_L t3tghL_ _.'_t ill._ _ha _,_pt. II, 2001, terror at_c_. Congr_s _uthodzud a huge in_¢_¢ In air marshals. From _ pool of _0,000 applicant, a f¢w tho_rtd - Itc r.xnc_ number I_ cl0_ificd -- w=r¢ hit c'd _ud given special edvo_;cd _lti-l¢r¢or_st U'gln_g.
Sever41 maedta_ laid t*,ASN BC.com Ihal the plogram i_ _uffulng budget troubles aud thai the _gency is Iboking t n make cuts whoever
il can. R¢celgly. enrollment in upgeidcd Iraln;,_g For air mlrshals, ksaown as *Pha._c II. _ was su_pcladcd.
The TSA declin¢_ In comment on Ihe dn'._ils behind thi= week's soheduh ch_mge. "The agency _nnot commenl o. dct_i_ or redual air n_hel rni._ion ope_tiorL%" said Brio_ Turm=il, _ TSA :spohcsnlOn. However, _TSA _mai_ earn mitlud to avialio_ s=curhy and _'_iil lake oft app:opriat= a_cps ne¢cs_or_ to respond ¢o crcdthlc th_al inf0_nad0n," ha said.
As to the nflcgafiOn tha_ hudg¢¢aq, constraln_ wclc at the root oFIhe pullback=;, Turmail _=id Ih_l all pmg_o ms whh[n _ TSA are "subject to ongoing _cvlcw." (n eddhlon, "TgA's cullcnl _sk is to balance Ihc need to m_t changing thzca_ whh the _:d to live
w_(hin the ageJlCy's budg¢_. ° he said "The Fcde_[ air marshal budget is under _¢vi©W ea de _.nn hi¢ how haS! tO mcct thr_: obj or.Jives."
The move to pull air marshals from any flight _t quirlng them to stay ovemigh¢ is padicul=rly d[stmbing to some heem_¢ i_ coincides
with a new high.l¢vel hijacking threo_ israed by the Deparlz_nt of Homeland Securer 7, That warning mama say= thai ==1 I_st one of Itcso attack= could he _xccuted by the end or the =ommer," according to a =aural= ramillar with th_ documenL
Ta= DHS memo also warm: that new intelligence iudic=tes (bat hi_acke.ns this time nl_y simply u'/to crash the plane= rather than fly _ [-[[j_¢l_ may ottO.rapt to usa common |terns ca cc[ud by tra._¢t¢_ _¢h _ c,_m=ms m_[[_ud _s _c_pon-'L" _t_d b_=:b.c_ "m_,y rty Io calm passeag¢cs" by making them bclicve they a,c only being taken haulage e=d'not on = _icld¢ mL*:slon.*
"AI-Qalda picu_rs have p_ma_ly considered suicide hijacklngs and bombings ns the most p_om] slag method In dc_lm_ akr.ra ft in flight m well a= w st_lhe Uound ta_gels,*_ the macao _=ys. "Attack venue.= may include du: United T_ingdom, Italy, Attar-aft= at" the E=sl Co_t or 111= Unitud Slams due to the relatively high concenlmtion or govcm_cnl, mlftaty ¢=nd economic IsrgeL_," Ihe memo warns.
3he canccllat kzn of overnight sm_ h= bccn i]oating arotmd the air mor=h_l _Jmor mill fur w _.k=, based pn con_m_alions MgNBC.com h_ h_d with va_ous murces in the _r m_rshal pmgeam.
When the _llty hit, several air mar=hals voiced their dlshal_F flint the euthack= were cornh_g now. i_ the Wake oF nm,vly l_ued vearnlngs.
"The racl that thi= i= coinciding with th© new airline threats, it j_t blow= oar minds," on air man_het aaid. "We enn't nova [¢v¢_/
NightJ but _t le=t put us on the high-thr_¢ planes, the on= zro_cling uc_o.'_s the count_." the air marital etald, noting thai d_: four plane= hijacked =n SepL I I wt'_ all schc,Juled cro_-country flights and thcr¢['om filled to c=pn_:ity with aviation f_ck Hal having air morshid coverage on those P/pes of _ghL% =i_'_ jusl plain sear)'." the air mopzhol :mid.
The nit ma_hel program I_ bc_n b_el hy = nurnher of p_oblcm._ during its quick ramp-up from o raw agents to thou==_mds. MgNBC.com ¢ct_ort ed in June that more than 100 fedct el air marshals had hcc_ I'I¢c d or stripped of their Uight _latus for [_ohicms slamming From d¢ic sccu,_t7 clca_ncc background invcs¢ig=lions. In addition, some =iF marshals were flying without having rccci',¢ d their fln:_t sccu ri_ C_taf=tc¢_. 'TFdn_pO_a(_on _ ¢:c_Jt_W A dmhllst ¢"J(}Ol15o g t c,_._ s=id.
MSNflC Tcm_. Condili,._nx and PHvacy O2{]1)3
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TSA in "witch hunt,' air marshals say Homeland $ccudly dcni_ Imowkdgc of fonnal invcsd|.fio. b7 Brock N. Mock, I_NBC, II August.2O03
W.ASHINGTOHo Aug. I l- The Transpor_:itlon5_'udtyAdminismzdon isco'ndocdng a "wltchhun["tofc.nctou!and dh-cipllnc employce_ in the federal Bit me_rshul program who have talked to the n_dis, several souec_s wlU_in Iha program told MSNBC.com, Sam© dir merdl_ls arc even being _hrcaigncd wlzh ha_n s Ihg USA Pamol Agh o law cnac_ed to help flghl tcnmism, used agulm_ them. "i'h¢ Dcparimcnl o[ HomclamJ Security, which oversees [hc TSA. d¢nirJ thai day suchiz'ivesdgadon is z_:ing pl;Icc.
HOWIFV ER, A DEPARTMENT Of Homeland Securily SpoL_smon did acknowledge Iha_ an invesdgofion _sundcf _sy :surroondin_ [he citcumsiance_ involving a decision (o pull air m_shlls from high d_k fllghls in nn ailcmpt Io save moneysal [he cash ztr_ppud T_A. a stray tim cqm_cd in bin July o. MSNBC.com.
DHS 15 invcstlg_fing "whclhc[ m".or ccrlaln int_ thai m_nagcm_nt dccisic_ns_e_arding federal ai_ mm-_halscIcduling wen: aad_'i_d." said Bdaa Rochr_a_c. 0 dep_rlmem spok_man, °and it so. who rrmy have aulhorlz_J Ih_c, °
Shortly ni'to_ IV_HBC.com rcpoacd dsat TgA was pulling air rnarshnls h'om Illghls. based on info_milion pro'_ided by sources within Ih_ air rolL.hal pragton_ on °inve._igativc wilch hunl was stazled, ° one _ m_hai who requested ano.ymlly told M.._NBC.corn.
'Th_ _t marsh_s work _ undercover taw cntorccmcn_ o[ficcn _board ais[incs; zs s_h, Ihcy a_¢ ohen given ac¢csa _o ¢inssiflcd mission information and [hep_ro_ m'_made to sign documcnU pledging [hcy will not divulge in_orm_ion Io Ih_ mediL
NO FOI_'VU.L I'ROB.T.
P.r_hrkesl;_ s_ld th_'¢ 11;11;b¢cll no formal invcslJ ga|_on s_mcda| uncovcfiog gCXSOnSwilh_o die air marshal proglaln Ihm mlghl h_vc le_cd informad_ Io Lhamcdiz.
However RochrEam¢ _d s_y DH5 "will invastignto _n7 incldc.u" ol employees disclosing wh.I they know to be classi f_d in Jorc_[lon. "_vc W government employcr_ including sorncon=in the [eder0l _ir marshal service, is prohihitod by I_w _om releaain_ sc.nSidVCc{_._G _:[ inFormstion unless _vcn express i_rmi_ion to do so," be s_d. And if an invcstigifion found that [hat c[_ssH_¢d _nform.tlon was divulged out_ide _= agency, II waned bc e violation of law and dic pcaon or _rso_s "_bjcct to an'cst m_d pro_udon." Rochrka._,c _ld.
But :mine air mm_h_[s did gp_k lo M$i_BC._om abeu{ txdng pulh-d horn hlgh-risk flights bec_c thay bali=veal thai acs _lone hun overall sccu_ty.
The mow on tha par[ of nb maz_h_ls Io come forwa.,d d_w a nod from 5on mc Dc moc_a_ who bl_tnd "fS._ foz"considering Iha mov _. m pullaismarsl_Js from soracflightsslp_plybecauseorbed_clwoes. .
"l w_nt so [honk ll_ air mor_h_l_ who came for_verd and told the U_Lh about what w_ goin g on whhI. 1heir agency lind bdng|ng _his • issu© in[o the spo[light." said Sci_ Bmbara Boxer. D-C_Iff.. during o news conference. °b_cau_c t bcH_vc tha_ cuzl3ngoh"me4r_hslsw_ dc_d), in Iha mix Of budgc_r,/cuts being cams[dcrcd."
1_Ip[[o])on alr m_r=hed seheduins
One__r n-m_hal to_d M.sI_r_c.co m d_l his cnlha fi¢_ office wes given nn oral bdc_ng md told "_! an lnvC:sdg_Jon Is .nd_ way _ emd [h_ in order (o help _nd pc0plc talking Io die mr_ia. "lh¢ USA P_dot An1 was going to tx: usP..d"to pull hom,_ phone _ld Intornct recoils._c,_cz--_ocherairm0nind,s h_HBC.com hc_rdfrom toldslmil_ storiesof on inv_tig_don underwoy; one _dd_don_l air manhai _1_ m_doncd _at his supc_r_isorhad n_nfioncd the use of 0a¢ P_LHOt Act.
"It _h_e .itego(_ons a_e t_c, d_ 7 show mispis_d _od_i_." said Rcp. Osr_lyn Maioncy, D-N.Y. chab- of [he Dcm_r0fic T_k _r._ on Home[lnd Security. "They shs2uldn'lbc going offer civil _c_"¢ants doing [hair pa_rlodc duly; [bey should ha going 0[[¢r
C_,I'T G'_WO_ ]FA"£'J_OT ACT
B)' low° how'ever. I_c T_A tm'l _lowcd m invoke cbe Pntdo_ Acl. That I_w w_ dcvclow.d to give h_adcr su_cillancc ar,d inoso=umd_l puw_" to [_w cnfm¢cmcnt 0gcru:i_ in o_dcr to bel_ comb_ tcnod_m.
_toning to uzc Ihc Par_.t A_ "is not _ _c of law. i_'sen _cl of intimidad,an "said 5tcvcn N'lcrgond, who runs Ihc'ProJ¢c_ on Go',,c_nlncnl Sccn:¢y for _c R:dc_ation or American _'icn(is_. "T_ pulidcs of rids _r¢ the _gcncy is to, in_ 1o_gul_lc wh_| kind of in_:r_cdon Its ¢mpk_r._ have with Ihc _cdia _d the general public," Aficrgood s_id. "That is something that m]scs qu_tions of agency gos_l rai_h,"
And from hr-n:_hc ncxl sscpis *for Con grr-_ to invc_fiRatc the behavio_ of lhc _gcncy because they _rc _kirfing, if _hcy bevcn'l crozscd |heboond_rT,or b_d l'aizh.'A[ICrgood Said.
Th_ s c.xQctlyd_c(innldng of Rcp. Mdioney; she s=m Ic ers o hc cho rmcn or ihn House .nd SenateJudini_uy comrni.cc n_d the chah-'m_n_nd ranking mcmb_ofthc House S¢lceZCorn_it_c on Homeland Sccudz}' urging further 0cdon.
"[Tol In'_okc. or din_aton to _n_kc. the USA P,[rim Ae_. 0 low ,n_an_ to batdc tcnor_m, to za_ct paLHndccmptoy_¢r...co m.sIo hc nm only illogical, but a misuse of thc law _ welL" Mainncy _ays in her _ct_cr the Jud_ci_o_ committee Ic_dcrs. "[ urge your comrnlUcc to fonn_iy invc_dga_c d_calleged mlsusc of _hc USA PalHo¢Ac_ by DH3 for i_ inlnrn_ probe of employee s."
In Iha Ic.cr to Ihc Home Itomcland 5ccuHly Cammit_c. Maloncy _ga _haC_hcrc he an inv_dgndon _o find out _vhcther DHS is pur_ulng an invr._d gation into Ic_P,sslcmmlng Jrom d_c in d_ Federal Air h4o,h.[ program _odclcrminc ff "rcsourccs _ue belng mi_dhc_cd."
Copyrighl C_2003 M_HBC
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Air m_rshals strugg{e with 'growing pains' Autonomy of field ofllces creates bumpy ride for rank-and-file Federal air marshols am shown hero performing tactical training inside a retired airliner. On the job, they must adhere to a dress code thai some say makes them easily identifiable.
By Brock P,I. Meeks Chief Washington conrespondent MSNBC Aug. 4, 2004
WASHIHGTON - Nearly three years after the government's dramatic rosurreclion of the moribund Federal Air Marshal Service in the aftermath of 9/I I, the agency is hilling turbulence as it struggles with what one agency official called "growing pains."
A resent incident, as well as a new ad hoc policy direclive, indicates ihat {he ride could be gelling bumpier for the hi_-profile agency before it gets belier:.. The incident involved two federal ai_ marshals from the Cleveland office who were recently stopped from boarding the plane they wore assigned to protect because of a dispute with art air ms.hal supervisor regarding the agency's dress code standards, MSNBC.com has learned, q"he plane then took off without any air marshals aboard. The policy directive, which applies to ffir marshals only in certain parts of the country, requires the submittal of least one "surveillance delection report" ($DK) per month, MSNBC.COm has teamed. These reports are used by-mhk-and-lile air marshals to detail and track suspicious activity andare then analyzed by intelligence experts looking for possible terrorist trends. A directive mandb, ting the .submission of these reports creates a "ticket quota" mentality, one air marshal supervisor told MSNBC.com. Worse, such a mandate encourages filing bogus intelligence reports. "I had nothing to report, so I filed a f_Ise report," an air marshal told MSNBC.eam when questioned about the effeot of the policy.
• Two federal air mot'sills were stopped from boarding the plane they were assigned to protect" because ors dispute with. n supervisor regarding the agency's dross code standards.
Both ofthe_e instances reflect the wide latitude supervisors of the ageuey's 2} field of'floes ore given when interpreting and implementing agency policy. The situations suggest that agency policies can vary greatly [rum one field office to another, putting rank-and-file air marshals at odds with supervisors.
The dress code issue is perhaps the most visible example of the disconnect between management and working air marshals.
Air marshals have been upset with the agency's dress code since it was officially instituted early in the agency's Iife_ }Lank-and-rite marshals claim the "suit and tie" dress code makes them too conspicuous to other passengers and by extension, any ten-criers who might be lurking.
Frank Tarreri, president of the air marshal chapter of the Federal Law Enforcement Officers Association, united the dress code "deadly" in a letter last year to agency director Thomas Quinn and has lobbied him to mudi fy it. . .
During a recent congressional hearing. Homeland Security ScerEtary Tom Ridge, when questioned on whether the dress code put marshals at risk, suld the standards would he reviewed and changed if nended.
The agency declined to provide the exact language of its official dress code, citing operational sacority concems. However, "there is flexibility [in the dress code] depending on what mission the [air ma_hal] is going to fly," said Dave Adams, a spokesman for the Air Marshal Service. "
Adams declined, however, to comment speoificnlly on the Cleveland dress code incident soyiog, "We do not discuss internal issues involving our personnel." HowcveL Adams did say that the service "adheres to professional standards to instill confidence and respect to both passengers and crew, especially if an
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emergency arises at 30,000 feet."
The field office supervisors, "because of their vast experience as haing senior managers within differeht [federal law enforcement} departments pdor to [joining the air marshal service], do have some flexibility in their internal procedures or running their offices," Adams said.
Rogue pogcy? The retativ¢ autonomy given to the field offices may have allowed some air marshal officials to overstep their authority by instituting an unauthorized intelligence reporting.quota, MSHBC.com has learned,
"Beginning in July 2004, each FAN[ [federal air marshal] must prepare one SDR [surveillance detection report] per month," says an internal air marshal s_rviee c-mail obtained by MSNBC.com. "The object of this instruction is to make you more alert to your surroundings not tu generate bogus reports. However, this is part of your performance appraisal and you must prepare one a month," the e-mail says. 'There may come an occasion 'when you Just don'l see anything out ol' the ordinary for a month at a time, but i'm sure If you are looking for it, you'll see something.' -- Internal e-mail Federal Air Marshal Service
Azother internal e-mail obtained by MSNBC.com addressing the same issue says: "There may come an occasion when you just don't see anything out of the ordinary for a month at a time, but I' m sure if you are looking for i¢, you'll see something."
Part of the air marshals' job is to file SDRs r'any time they see anything of a suspicious nature," Adorns said. "Ob.vlously the federal air marshals are out there everyday in the aviation doh_ain and who better than them to know what's out of the not'ha?" noted Adams.
When asked about the mandatory SDP.. filing policy noted in the internal e-dtails, Adams said "there is uo mandatoO, requirement that [air marshals] must send in an SDR once a month for any appraisal purposes," adding, "we want pertinent, valuable information seat in."
Grayling room Any disparity in policy among the various field offices should be chalked up to an agency that "is kind of • like newly poured concrete," said one field oft'ice supervisor. "There just hasn't been enough time for the concrete to harden up."
This supervisor, who like others in this story spoke on the condition of anonymity, said the air marshal service is "still going Ihrough growing pains.... It's a matter of getting the agency built out," he said. "I think it's going to be the beet place to work in federal law enforcement in a couple of yearn, to tell you the Izuth. And it will just take time for all these problems to sort ouC"
One of these long-standing problems within the agency has been a conspicuous leek of promotion of rank- and-file air marshals into supervisory positions: Until now.
"Applications ore being vetted right now, and we anticipate, hopefully within the next 60 days, to announne some [promotions (o] supervisory posit_oas drawn from within the rnnk-and-tqle FAMs," Adams _;aid_
Air marshals nlsu are dowly expanding their roles in other areas of law enforcement, such as being assigned to work with various ]oint Terrorism Task Forces, in which they work with other members of federal law enforcement on ter'oorism-related cases. In addition, the entire agency transferred from being under the contro! of the Transportation Security Agency into Immigrations and Customs Enforcement late last year.
=ICE offers the air marshal service multiple investigative resources, such as additional access to intelligence, better coordination with other law enfomement agencies, and broader training opportunities," said Michael Garcio, assistant secretary for th_ bureau, at the time of themove. 0 2005 MSb!BC interactive
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Flip-flop on air marshal schedules Air marsh.Is wifl continue to fly on international, eross_U.S, trip_
Jt=_t ]0 -'After MSNBC.com reported the new pol_y, the T_n._por/at Jan Sccurily Admln brt_don s_d _l _voul_ JmmediM¢ Jy begin =chcduling elr marshals beck on cross-cotmrcy and in(emotional flights, HBC's Pets Wgli_m_ reports.
By Brock N. M=cks. MSHBC
WASHINGTON. July 30 -- in an =pp_.rem mwr_al of policy, the Tramportadon SecudW Administration wifl immediatcl 7 hagill scheduling air n_rsh_l_ back on cross-cou.lry and International flights. MSNBC.com has learned. T11¢ move comes Icss thlLn Z4 hour!;
af¢¢¢ MSNBC.com reported thai air mlrshal_ w_re halng pLtHcd from tho_e flights becat_e ofb_dget problem_ associated with the cortg Or ovemlgh! Jodglng fc¢ the m_tshoL_.
THE DEPARTMENT of Homelond S ecuriZ'/on Wednesday hismed lee con I'usion on a mi_up _n communi_al zon and raid the dcplrtmcnl bad been working wilh pie mor=;hal ofl_cieda on Monday to cottcct Iha _i p,:atin n. "Amebic= ;should know t_l cv=_ air mar•hid tb_ w© have is b_ng deployed, and addilionot rc_omces ore being direr;led to that
w_ ndti_l mission," Homeland -_ ccurlU/Sc_a W Tom Ridge _aid Wedn_d=y in a speech. Pt_ of the plan to add r_ includr..¢ a recall of 100 air marshals now doin8 o_cr john with TSA, = spokesman for ¢hc said.
t,Yex_Pt_: New hJjuck w_min_
The dropping o1" _hais frcm flights that many experts consider to ha at tha highas_ risk of attack came to lighl T._day when sav¢_l air marshal= conb_ctod by MSHBC.com confirmed that t}lCy were =lcr_d via • "text mc:s_agc_ ot_ iheir TSA-issued cell phones I0 check Ihc_r schcdul_ for change. . .
The m_J_b found d_a_, beg_rming Friday, they had not been schaduind for any flights th_ would require them to ztoy awcy from home ovcm_ghL "[hat t_een't "rid (elf rn_shal coverage on international or cro_s-couJ_V fllgh_, the very kind fagoted in the Sept. I l, 2001, tcrcotlst tU=chs_
Dcms _cn_'w c=lf fur su'cl_l_ _undi._
The move to pull m#nhah Rum t_o_e flights was partlcul_ly disCmbing resume bee=use it coincided with a new high-lc_cl hijacking throat issued by the Dep_rm¢_ of Homehqd Security. That warning memo said that "at least one of th_s¢ ett_cl_ could ha
executed icy the end ortha summer." accoMing to a source f_nilinr _ilh the document.
The TSA, which hau._cs (he =dr m=rd_d program, has been under sevc_ budgeta= 7 eonsetaiats, forcing culbac_.J in several a rcar_
;-eluding laying off or fedml _t]_ort $c_.encrs and the zccantly announced guspension of adv_ced Ph_e ll training for its agoras, told MSNBC.com."[he move io _t out flights requi_ng air m=rchal= to, stsy ovemlght stemmed fiom those same budget
pr0blcm.% MSHBC.com w_ tom by an agency somcc. 8¢=. Chu'les Schumcr. D-N.Y. colt ed the cuts '*nonsc_sica W in e leetct Wednesdcy to Sec_c_ Ridge. Schumer's letter urges DH9 tO '=immedl_ely reverse rcpm'tsd plums to c_t _ir marchal scrviee on co_t-to-cost lind mtemaflor_l flights ... in light of intc_Egencc indicating thnt a_Qalda and ndcr ler¢odst groups may have stepped up plans*' to launch attacks on airline_. _oR Tagge_ e!rport =ccurily
Sctmmeds Ic_r._ys thZL "a_cording to turn=nones by TSA officials. _bc"proposed cuts in the air marshal program come in
r¢_'pome to a $900 m_Eon budset hoic at the aSc_'y."
Whet" b _heme end see rily"l
president Bu_ ha_ given f_rmer penncylwmia Cov, Tom Ridge Ih= job of managing t_e government's efforts to deter _nd respond to t_rmri=t aexek;. "Homeland s¢¢u_ty?-- protecting Ame6=r_ on US. soil-- h = complex mis¢io_ r_cl.iH ng the coordinated work or dozens of fcdenl, stole and Io_1 agencin=.
Fcd_[ elf m=rzh_lz arc _ ',tmb_ov= r agents deployed on U.S. aidincs and autho_zed to use deadly force to th',vlut a terrorist b_¢_lcnL Pdor to Sept. I i, 2001. U{arc _VeR: only _ EW _O'L'C n marshals who flew mainly qn international flights: But a(_cr the Sept. I l, 2001. tcrror nieces, Congr_s autho_z¢_ a huge inct_c in air m_hais From a pout orZJO,O00 applJcaJ_ts, a few thousand -- the =act number is cl=sified -- were blind _nd given sp¢:¢l_J edv_ccd anli-telzo¢lst IT_inlnlg. "Rtc ptoer_m ha_ haen bC_l by a mLmb¢_" of problems during its quick ramp-up (rum t few agents to _housanda. MSH_C.com reported in June th_i more th;L,1 lOCI Cedetal air marshals h_ been fired or stripped o [ thcis flight s|atu3 for probler_ stemming from ihait Security ¢(¢omnr.¢ background fnvmtiga6o_, in addition, some air m.e_hals were/}y_ng withoul h_ving motived/hclr fit_l seT.urii'J dears.noes, Tnnspoetmion Security Administration sourccs _id.
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.....Original Message ....
From: Korniioff, Gregory Sent: Wednesday, July 07, 2004 5".59 PM To'. Billy Williams; Char[cs Maurar; Craig Hamic; Douglas Hladky; John Plunkett; Michael Marzigliano; Roger Sehoiieid Subject: REMINDER - FAMs SDR REQUIREMENT
AS DISCUSSED DURING TODAY'S STAFF CONFER.ENCE, PLEASE REMIND YOUR SQUAD MEMBERS THAT EACH FAM IS NOW EXPECTED TO GENERATE AT LEAST ONE SDR PER MONTH.
GREGORY N. KORNILOFF Assislant Special Agent-in-Charge U.S. Immigration and Customs Enforcement Federal Air Marshal Service Las Vegas Field Office OFF: 702-263-8756 (EXT: 562) CELL: 702-523-1252 FAX: 702-263-0832 EMAI: kornig01(_sccure_kies.n et
---Original Message---
• From: Williams, Billy J. Sent: Thu 7/8/2004 I 1:24 AM To: 25Squad6 C¢: Subject: EW: REMINDER - FAM's SDR REQUIREMENT "
Las Vegas FAMs continue to be last in the nation When it comes to generating SDRs. Some LAS FAMs seem to be doing all of the reporting, while others are offering nothing. Conducting surveillance and generating SDR_ is a part of your performance agreement. SAC Knowhon has decided that evel 7 LAS FAM must generate at least one SDR every month.
Billy J, Williams Assistant to the Special Agent in Charge U.S. Immigrafiort and Customs Enforcement Federal Air Marshal Service LAS-209 Office (702)263-8756 Cell (702)499-17gi PDA (702)335-403g
-----Original Mes_age---
From: Hamlc, Craig A. Sent: Mon 7/12/2004 hlg PM To: 25Squadl; 25Squad10 Cc: Subjecl: FW: REMINDER - FAMs SDR REQUIREMENT
DEAREST MEMBERS OF SQUAD -I AND SQUAD - 10, ALL FAMS IN THE AFOREMENTIONED SQUADS ARE REMINDED AND EXPECTED TO GENERATE ONE SDR A MONTH. PLEASE BE REMINDED THAT SDWS ARE ONE OF THE MANY CRITERIA YOU ARE BEING EVALUATED'....TIqANK YOU FOR COMPLYING WITH THIS OFFICE ORDER.. YOUI_ LOVING ATSAC, CRAIG ....
.... Original Message .... 26 SA42 Case: 11-3231 Document: 33 Page: 103 Filed: 05/30/2012
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From: Maurer, Charles H. Sent: Thu 08-Jul-048:13 AM • To: 25Squad5 Cc: Subject: SDR
Beginning in July 2004 each FAM must prepare one SDR per month, The object of this instruction is to make you more alert to your surroundings not to generate bogus reports. However, this is part of your performance appraisal and you most prepare one a month.
..... Original Message .....
From: P/unkett, John R, Sent: Wed 7/7/2004 5:34 PM To: 25Squad.3; 25Squad9 Co: Subject: SDRs
As you all know, compleiing and submitting SDRs is an important aspect of our job and is considered when evaluating a FAM's performance for each Quarter, Obviously, someFAMs have taken more of an interest in this aspect of our intelligence program. 1 say this because Dsignificant, number of FAMs have never submined one. I can only encourage you to keep vigilant when transiting airports, etc. and when you see something suspicious, please consider sending a SDR. It doesn't have to rise to the level of PC, but if it looks out of plac_ or the least bit suspicious, submit one.
The SAC has asked that we discuss this aspect of our job with all FAMs and fully expects everyone to participate on a monthly basis. There may come an occasion when you just don't see anything out of the ordinary for a month uta time, but l'm sure that ifyou are looking for it, you'll see something. I think some FAMs are hesitant about submitting SDRs for fear of being questioned by headquarters or their respective ATSAC. If it looks suspicio_s, but does not rise to the level of an interview, etc., send in a SDR.
John P,.P)unkett " ATSAC, Los Vegas FAM Field Office (702) 263-8756 .
.... Original Message ....
From: Marzigliano, Michael S. Sent: Wed 8/4/2004 1:25 PM To: 25Squad7 Co: Subject; SDR Reports !!!
GUys, tkS we discussed during squad meeting, their is a mandatory SDR. (at least one) which" should be done each month. Those ofyou Iba! did not generate an SDR repot1 for July, 2004, I need a memorandum simply stating why. Keep it shoo and direct. Any questions call...
Mickey M arzlgliano, ATSAC Squad 7
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Sccuri_ AdministrationTransportation
Final Order on Sensitive SecnrlW Information |n _nn_:tion with MaeY_an v. Department of Ho_-Jand SecurYy, No. SF-0752-06_]61 ]-I_I (M.S.P.B.)
L Request for Issuance of Final Order
In Mac.Lean v. Department of Homeland Security, No. SF-0752-06-0611-[-1 (M.S.P.B.), Appellant Robert MacLean, through his pleadings, seeks to challenge the Appellee U.S. Depar_aent of Homeland Security's position that certain information relevant to the above- captioned mam._r is Sensitive Security Information (SSI). lu orcl_ to facilitate judicial _vie_,,, AppeUee's attorneys have asked for a final agency determination on the matter.
IT. Delegation of AuthorRy to Make Final SSI Determination
The authority to identify information pertaining to transportation security as SSI is delegated Dora the Administrator to the Deputy Administrator, pursuant to a delegation order signed by than Administrator J.M. Loy. on April 10, 2003. The Deputy Administrator fia'ther delegated the authority to the Director of the SSI Office, pursuant to a delegation order signed by then Acting Deputy Adraini_trator, Kenneth Kasprisill, on Apri] 29, 2005. Both delegation orders are in effect as of the date of this Final Order and have not been amended.
IIL Final[ SSI Determinatiou
• The infommfion at issue, which Federal Air Marshal (FAM) management disseraimted via t_t rttcssage to the government-issued mobile phones of/as Vegas FAMs In late July 2(103, is that "allRON (Remain Over_ght) missions [from the date of the mes$age] up to August 9th would be ea_ceUe.d." B__ lqotlce of Removal (Apr. 10, 2006).
Pursuant to 49 U.S.C. § 114(s) and 49 C.F.1L Part 1520, it is my determination that, on July 29, 2003, the infonuation in question consfimtcd SSI under the SSI regulationthen in effect, 49 C.F.I_ § 1520.7(j),was the information concerned specificFAM deployments or missions on Ioag- t On May 18, 2004, TSA recadifiod § 1520.70) at 49 C.F.R. § 1520.5(8)(ii), its curreat citation. SA44 Case: 11-3231 Document: 33 Page: 105 Filed: 05/30/2012 ..... = 15/28 Ol/Sg/20B9 17:03 OCC _ I.,EST -' PAGE IV. Fiaal Order .This Order is issued under 49 U.S.C. § 114(s) and is final. Pursuant to 49 U.S.C. § 46110, any pe,rson dis_loslng a substantial interest in this Order may, within 60 days of its issuance, apply for review by filing a petition for review in an appropriate U.S. Coati of Appeals. col ky/_.. Director, SS] O_ SA45 ...... Case: 11-3231 Document: 33 Page: 106 Filed: 05/30/2012 Fe_ _ Air MttrshealSeruice I;.S, Departrncnlof HumeLaadSecurity P.O. Box 51522 lrvine. CA"9261R .,_, US. Immigration _._\_-_'_'2_Jand Customs '-_9_. Enforcement Seplember 13, 2005 Mr. Robert MacLean Federal Air Marshal Los Angeles Field Office Subject: Proposal io Remove Mr. MacLean: In accordance with the provisions of the Transportation Security Administration (TSA) Human Resource Management Letter 752-1, Interim Policy for Addressing Performance and Conduct Problems, this is a notice I propose to remove you from your position as a Federal Air Marshal (FAM), and from the Federal service, lfthis action is found to be warranted, it will not be made effective sooner than 30 calendar days from the date you receive this proposed notice. The reasons and specifications for this action are: e___k__j.: Unauthorized Media Appearance Specification 1: On or about September 9, 2004, you appeared on the'NBC Nightly News television broadcast as the subject shown wem'ing a hood and identified only as FAM "Mike." You had no prior permission from the Federal Air Marshal management to appear on the aforementioned television newscast. At that time you were aware of Agency policy Directive ADM 3700 that regulated and prohibited your unauthorized contact with the media. You admitted and acknowledged the foregoing during an official, administrative inquiry regarding your conduct. R_son 2: Unauthorized Release of Information to the Media Specification 1 : During 2004 you informed tbe media of the content of the FAMS Las Vegas Field Office (LAS FO) e-mails issued during July and August 2004 mandating that LAS FO FAMs compose one Surveillance Detection Report each month. You had no authorization to release this information to the media. Your conduct violated Directive ADM 3700, FAMS Employee Responsibilities and Conduct. You admitted and acknowledged the foregoing during an official, administrative inquiry regarding your conduct. -1- SA46 Case: 11-3231 Document: 33 Page: 107 Filed: 05/30/2012 • •r' I Reason 3: Unauthorized d_sclosure of Sensitive Security Information Specification 1: On July 29, 2003, you disclosed Sensitive Security Information in an unauthorized manner. Specifically, you informed the media that all Los Vegas FAMs were sent a text message to their govermnent issued mobile phones that all RON (Remain Overnight) missions up to August 9 th would be cancelled, or words to that effect. You admitted and acknowledged the foregoing during an official, administrative inquiry regarding your conduct. The media person to whom you disclosed this infonnation is not a covered person within the meaning of the SSI re_lations, 49 C.F.R. Pa:_. 1520. The information you improperly disclosed concem_ RON deployments. Such information is protected as SSI pursuant to 49 C.F.R. 1520.5(b)(8)(ii) which safeguards "Information concerning the deployments, numbers and operations of...Federal Air Marshals..." The disclosure of this SSI had the potential to reveal vulnerabilities in the aviation security system, and as such, was extremely dangerous to the public we serve. As a FAM, you are in a high profile position with significant responsibility for the lives and property of others, and, as such, you must preserve the public's confidence in these critical areas. As a law enforcement officer, you are held to a higher standard of conduct than non-law enforcement Government employees. Most importantly, as a law enforcement officer, you have an affirmative obligation to act properly and responsibly. Your unauthorized media.appearanco and unauthorized release of information to the media raise serious doubts about your honesty, fitness for employment, reliability, and trustworthiness. In considering the proposed penalty, I took into account that, as a FAM, you are aware of the importance of upholding and defending local, state, and Federal laws, and your prior law enforcement experience. Due to the nature and totality of your offenses, 1 have lost confidence in your judgment when making important decisions, and your integrity when dealing with management, airport seeuriq,, and the public. You have the right to reply orally, in writing, or both, and to furnish aftqdavits and other documentary evidence in support of your reply, lfyou disa_ee with this proposed removal, your reply should support why you feel the action should not take place. You should submit your reply to Mr. Frank Donzanti, Special Agent in Charge (SAC), Los Angeles Field Office within ten (10) calendar days beginning the date after you receive this letter. Consideration will be given to extending your time to reply if you submit a written reply to Mr. Donzanti stating your reasons for requiring more time. If you desire to reply in person, you should contact Mr. Donzanti on (949) 282-5101 to schedule an appointment to provide your oral reply. Due consideration will be given to any explanation(s), fact(s), affidavit(s), or rebuttal you furnish. You are entitled to be represented in this matter by a representative ofyour choice unless your choice of representative would cause a conflict of interest or position, unreasonable costs to the Government (TSA will not pay travel expenses for your representative), or a conflict with the priority needs ofthe Government. Before a representative may act on your behalf on this matter, however, yon must designate that person to Mr. Donzanti in writing. You and your representative are entitled to review the mazerial relied upon to support this proposed action. Please contact me if you wish to review the material. As soon after 1 receive your reply, or @.er expiration of the 10-day limit if you do not reply, a written decision on th e proposed removal will be issued. If you have any questions concerning this letter, or -2- SA47 Case: 11-3231 Document: 33 Page: 108 Filed: 05/30/2012 • , .O F3 your rights or proc¢ ures regarding this action, you may contact Carolyn'D0nohu¢, Manager Employee Relations Branch on (609) 625-2360. For your information, the Employee Assistance Program (EAP) is available to you and members of your family to deal with difficult situations. You may request assistance by eomacting the EAP toll free number, 1-800-222-0364, which is answered 24 hours a day. Any assistance you seek lhrough this program is confidential. Sincerely, Assistant Special Agent-in-Charge Los Angeles Field Office /, # Supervisor's Signature Supervisory Witness's Signature Printed Name Printed Name I received a copy of this memorandum to keep. Iooo, Employ_ature ._Ac LE:_ _n Printed Name SA48 Case: 11-3231 Document: 33 Page: 109 Filed: 05/30/2012 ( •. j i t!.S. D_pn _ rnenl.of Horn{land Securi_ P,O. Box 51522 lrvi_,CA 92_19 i_ Transportation :;_,...... AdministrationSecurity Date: April 10, 2006 To: Robert-MeL--e_ _,A,_ac_-.E_ Federal Air Marshal Los Angeles Field Office From: Frank Donzanti Special Agent in Charge Subject: Notice of Removal This is to notify you that I have decided to remove you from your position with the Transportation Security Administration (TSA), effective close of business on April 11, 2006. This action is being taken to promote the efficiency of the service and is based on the following: Reason: Unauthorized Disclosure of Sensitive Security Information Specification: On July 29, 2003, you disclosed Sensitive Security Information (SSI) in an unauthorized manner. Specifically, you informed the'media that all Los Vegas FAMs were sent a text message to their government issued mobile phones that all RON (Remain Overnight) missions up to August 9th would be cancelled, or words to that effect. You admitted and acknowledged the foregoing during an o_cial, administrative inquiry regarding your conduct. The media person to wht3m _/ou disclosed this information is not a covered -person within the meaning of the SSI regulations, 49 C,F.R. § 1520. The information you improperly.disclosed concerned RON deployments and such information is protected as SSI pursuant to 49 C.F.R. § 1520.5(b)(8)(ii) which safeguards "Information concerning the deployments, numbers and operations of ...Federal Air Marshals. The disclosure of this SSI had the potential to reveal vulnerabilities in the aviation secudty system, and as-such, was extremely dangerous to the public we serve. On September 13, 2005 you received a written notice of a proposed removal from Charles E. Ortman, Assistant Special Agent in Charge for (1) Unauthorized Media Appearance; (2) Case: 11-3231 Document: 33 Page: 110 Filed: 05/30/2012 UnauthorizedReleaseof Informationto theMedia;andfor (3)UnauthorizedDisclosureof SensitiveSecurityInformation.Thatwrittennoticealsoadvisedyouof yourrightto make an oraland/orwrittenreply. I carefully considered and evaluated all the available information in this matter, including your oral response of October 14, 2005 and your written response of October 17, 2005 to the proposa} notice. In your written and oral repJies, you do not contest the factual content of the charges. However, you argue that the off-duty speech specified in each of the three reasons is protected by the First Amendment of the U.S. Constitution and therefore the removal action is barred as a matter of constitutional taw. Based on the above, I have determined that Reason (1) and Reason (2), of the proposal, are not sustained by the record. However, 1 find that Reason (3); Unauthorized Disclosure of Sensitive Security Information is supporled by the facts and that your release of SSI to the media was unauthorized and not protected by the First Amendment of the U.S. Constitution. In determining the appropriateness of the penalty, I have considered a number of factors, commonly referred to as the Douglas factors. I considered your combined 14 years of military and civilian federal service, including your 5 years as a Federal Air Marshal. I also considered that you have no previous discipfine with the EAMS and that your previous performance appraisals were satisfactory. As a law enforcement officer, you are held to a higher standard of accountability and responsibility and your unauthodzed disclosure of SSI information to the media has not demonstrated that standard. Your unauthorized media appearance and unauthorized release of SSI information to the media raise serious doubts about your judgment and trustworthiness. Moreover, the disclosure of this SSI had the potential to reveal vulnerabilities in the aviation security system, and as such, was extremely dangerous to the public we serve. As such, I find little chance for your rehabilitatio n as a FAM. Based on the egregiousness of your actions I have lost confidence in your ability to perform and find that removal from Federal employment for your unauthorized disclosure of SSI is necessary to promote the effectiveness of the FAM •Service and the efficiency of the Federal Service. Based on the above, I find the proposed penalty reasonable and that your removal is the appropriate action. This is a final decision. You have the right to appeal this decision to the Merit Systems Protection Board (MSPB). If you elect to file an appeal with the MSPB, your appeal must be filed within thirty (30) days of the effective date of this action or within thirty (30) days of the date of this letter, whichever is later. The MSPB's regulations are available on its website, www.MSPB.gov. You may use the appeal form attached to this letter, or file on- line. Your appeal should be sent to the following address: Merit Systems Protection Board Western Regional Office 250 Montgomery Street Suite 400, 4thFloor San Francisco, CA 94104-3401 SA50 Case: 11-3231 Document: 33 Page: 111 Filed: 05/30/2012 %...., You must return all TSA-issued property to your supervisor, including ID badge(s), equipment, and manuals. You are advised that TSA regulations prohibit you from divulging Sensitive Security Information (SSI) even after you are no longer employed by TSA. If you disclose SSI, TSA may seek a civil or criminal penalty or take other enforcement action against you. Please sign the acknowledgement of receipt below. Your signature does not indicate agreement with this action; it only represents receipt of this notice on the date signed. F_r_k Donzanti .... Date Special Agent in Charge Robert_e_ _ a,(-L r_,_._1_ Date Acknowledgement of Receipt lz{.f_ Delivery Information: Hand De'livered By Date z 3_ SA51 Case: 11-3231 Document: 33 Page: 112 Filed: 05/30/2012 L -:: .! .':_.. t..22 _..' •../Vl _._J ¢_l.,,J_ IVL:. I..,l*O,,.i III l.v,.I /"III%II:L.L;t,,) I'IILLI]... ',JI'I'IVL_ I'rlN illV 8 O_IQhlUL, VU..IO oc_-ig-2oo_,_04,22P,_i_?8_G_ _ ,o,_I__oo1,37 P. Ol _ I_DERAL LAW ENFORC_I_ENTwww.fleoa, orgOFFICERS AssOCIAT_ON FAX TRANSMITTAL SHEET 9 - - / 4 _-o_em OR o1_11 _,_o,./_. _._,_," ON _,,_,._ . IF YOU DO NOT REC_ .I_ ALL PAGF, S, PLEASE (slO 873-8600 The document accompsuy_ng lhl@ t_l_opy treu_ml_lou m_ eou_ Information from the law firm of Mahon & Berger_ Esqs, or General Cool,el to the ¥edernl L_w Enforcement O/_er_ A_oc/a_on, which Is confidential/end/or legally priyflsged, The lnform_lJon b Intended only for ell, II_e of the tudMdual or entity named on this trausmbslen sheet. Ilyou _re not the h_tended recipient, you are be_'eby notified t_at any dbelotnres, capyh_g_ d_'trJbnfion, or the l_J_ng of_y oette_ in rellanee on the eonte_t_ of this teleeopy Informntlon i_ a_©tly prohibited and that the docnment should be returned to thk firm lmraedlately, In this regard, tfy_u have received this teleeepy in extol., please notify _ by telephone immediately so we elm arral_ge for the relura of the original document Io us a{no eo_l to you. ! \ ( ) 350 Old Country _d, Seite 101, Garden C_ty, NY EP390 11$3D i Tel.; 516-8.73-8600 F_: $16-873-1937 SA52 Case: 11-3231 Document: 33 Page: 113 Filed: 05/30/2012 ._---. --~ U_|-EO-EUU_ IUr. V_'_V [11 LVO M|_rL_O rIC.LL/ UFrlvr- rrtA IIU, O_t_tU;JUU,i,j OCT-I_'.-ZO05tED 04:22PM_+'_ BERGER P. O2 | \J FEDERAL LAW ENFORCEMENT OFI_ICERS ASSOCIATION . _50 Old Country Read, 8ultei0|, Garden C|t_ NY I13S0 Tel.; 516-873--8600 t I_IX:516-873-1937 wWW,fJ_,f_,,e.org O_tobeTiT, 2005 FzankDonzaatl, Spedd Agent _nc'_: U...g.Dspartmem ofHomcLmd Seoority FederalAirMard_s Service Los Ang_l_ Field0_ Irvtne, CA 92618 Fax No. P4_-465-OOM Ra: Robert_le_ - Fed_l Air M_al lh'oposBltO Remove Ds=Mr. Donu_: Please be advised that I am General Counsel to the Federal Law ]_fomemc-at Of_cer_ A_aoi_aion, and t.that vapemty r_s_t FederalAir Marshal(TAM) RobertMoClea_m corm_tlonwith a pr_os_ltoremovehim f_omfaeemployoftheF_4ecalAirMarshal Bcrvico (the"Ase_o/') d_ed Sep[embcx13, 2005. This w_tea r_spon_c s_pplomcn_ the oral response provided on FAM McClmn's . b_half_aOc_abo_14, 2005, Th_ propoa_l to r_movo i_predicated trl_l_ three separar.e _on% _li ofwhioh dea$'v,'i_hyahoos mod_ Of _f:f-dI_3'_'p_e_h. -! SA53 Case: 11-3231 Document: 33 Page: 114 Filed: 05/30/2012 t, v, o4!.?..a...PM8EROE No,Sl68.. o..1837 P, 03 _Le_on l chen"g__',_Vf McCleen with m "u_u_o_ m_,apL_m_ee" which conc_ed]y _o_ place on Sc'ptembcr 9, 201)4 on the .I_C Nightly _,s tdc..'_on toe.cast of tl_t cycling. Appa.--emtly,the _on_cnr of any _d all "wordsutW_ by F_ McCic_a o_ t_e N'SC program is not Ih_ subj_ot of the charge. The contort of the _pe_b vm.braccd the Agency's ch_ok'point bypass procedures, airorat'tboarding prooed_ros, _'sslgro_C_ing codes, mandator7 hotel policy, and PAM's manttgc_aeats' discbsu_e of _ensi_ve Sccudty Information to news organizations such ae CRrNart_tN]_C NightlyNcw_. _eo Report oflnvestigati0n (*'gel") at R.xh'bit 2, bot_m of page. N.eas_a lie oonflnt.-.draere]ytoFAMMoClean,s appearance on t_o program. Reason2 charges FAM McClean with "unauthorized release of information to th_media" and specifies generally that din-lug 2004 FAM McOlean informed the "m_ia" ot th_ eonto'at of the FAM.q Las Vcga_ l_ield Office- e-maiLs issued du_.g July and Augaat'2004 mandating that I_AM9 assiga_ to L_atot_ee compose one ear_Llancc detection reportea_ month, The _m.alls are _ fm-thzt ROI Exhibit 7..qigntficantly, Reason 2 do_ not charge I_AM.McClran with r¢lcu_g cm_dentlal, sensitive, or o_he_ise specially protected infocmafion _mdthcro is t_oallegation thee FAIVIMcClean ecru/ally provided any documents to mcalbers of the media. Reason 3 oharg_ lOAM McClean w/th "unanthod_d dleolosur¢ of sensitive s;eourity in.formation," when, o/_3_y 29, 2003, be dlsoloecd to the "media" thc,t all L_ Vegas ]CAMSwere sent e te,xz message to their government issUe_l mobile phones that all 'Yemain ovemlght" missions qp through August 9, 2003 would be canceled, or WO_ to that e_coL The pJtdeilying lacteal la'ed.i_te m_pporii_g each of _e reasons ia not contested by FAM MoC!ean. R_ther,I_AMM_Clcan assentsthat the off-duty sp¢_oh specified in ea_k of thegn'Co reason_ is p_tected by _hefirst amendment of the United States Const/tutlon and the=cretethe instm3tremoval action is therefore barred as a matter 2 SA54 Case: 11-3231 Document: 33 Page: 115 Filed: 05/30/2012 U_aI-C._-CVU',j._ |UC.. VJ'OI /'It LVO nll_g.LUO t"_F..t.{_ Uf'{"J'_,_, fCIC{ IIU, O'_¢'Iv_vu-_,; P, O4 OOT-I_200_ gl) 04'23 PM __ BERGER FhX _, 51B _.'_-.J_37. ofoo,_s',:lmtinn._llaw. I. .DISCUSSION It iswelLs_led law that the firslJ_ra_dm_m pmt_ts the _peeoh ofp_blic employees as well as private d_ens. See e.g. _ 107 g. C'_ 2891 (I g87). However, compared to prlva_ otfizeas, public emI/loyees, suoh msFAM McCic.a_ ez_y lessfi_t amendment proration than private cidzens became lee go--eat, federal or sure, has a s|gnifiuanTin_mt"as an eraploy,:¢ in _.xlmflng _e epee_ of l_ emp]oyeeg' in o_ l0 p_rfo_m its pCbli¢ sercloes effectively. See Pick?ring v. B_LO(_/d,, 391 U.S. 563, 568 (1968). In the Supx_m¢ Court observed flint "[t_e probMm'in any [government] employee case is toarriveU abal_acc betweenthe i_teee!ts of_e ...[e_l_ployoe] as a cicada i_ a_mlmonfingupon malta_ of]_l_bllo Fonzem md the inter¢_ af the, _le, _ {_ employmr, in p_omofing tim effloienoy of the pubE_ s_ci_es it pcrColms through it_ employe_s.".._ [Bmph_ added] i,_ The balancing tat defined ih _ wan, in a Igor _upreme Court dedsimx, rofincd r,omewhet. Ia Connick v. Mvem. 461 U,S. 13g (1983), flte(2oart treated the '_eblio ¢o_.em elemonf' of t_e _ balancing tesz into a threshold _ulxem_t: "if [apublic employee @e_h],.. cannot be fairly cha,'_aotedgeq_as oonst{_ti_ epeech on a matter ofp_lblio _on_'n, h h ",_eoesmaryfor [e _o_R]... 1o son_iz_'_¢ _msormfor the[employs's] di_hargc,".., • According to _, ifth_ Coq_'tfind_ that the public c0"nploya_epoeohmeets the 0xre_mld req_ff_men_ that the speeoh _o_ohvg a" mbl.{o eerie," o_,lyth_ should the C.o'0_-tgo on Io SA55 Case: 11-3231 Document: 33 Page: 116 Filed: 05/30/2012 WI-EU-_.UUU ..... Iur- Ul,Ol FII L_ rSl_r.LCO rLCLP UFFlVr. rrlA I1U, O_OqU_VuHj I = U_J CCT-lg-20O5 I_ED04:23 PH_""_1 BERG_ FAXI_0. 516 87_. 1937 P. OS balancetheomployeo'ghatm-o.gtinfleeoxprcaslo_agaimt,_govmxnntmt'sintore_tincurtailing thoexpression."thebal_ohtgoLomoatofthefirstam_0_mCnttmalysi_roquir_sthatthe employingag_cy demonstrate_tMt_t_t_t_t_t_t__ toitge_cientf}mctioni.gofitsmi_-iouintheeva'at thina public omployc_u_ epeecl_touchingon ap_lic¢gncerm A p_t_pfiou ofharm isnot sufficient to outweigh an emp]oysa's interest in _eal_g on."a matter of public _oc_m. 830 F,2d 294, 300 ('DE?CLr.1987), Thcz'o_re_as_u,,nmg_et a pubic ¢mployeon_z:e sp_ch that touch_ on apublio cone,era, the govcm_moat_ only pass the_ balancin 8 tesa if it o_'ezs_kkmco of_tuaiharm toIt_asserted imcte_ In _hoabsence _fsuck • . t de-momtrafio_s pubii_employescannolbe advecselyimp.p_todby virtueof spc_k'_8 on amatter ofpubliccot_c'm. h Lightof the foregoing St,,prom-,Col_rtcaaes, m or_O_to _dioate advo_o actions against public _rploycca _h_oh ere rooted in oXT-,4U_yup_b, tic an_yd_l _-arnswork m_nda_¢_ the Agency cc_Ider the following _'_otor_in i_ de_om_L'_ation; # A, Did the @eech touch or,_ "_pubfi_c_cetn' 'or Wss _e' _pee_ only persons[ m no.tin'e? l_riy_tosp_Ix m_ he h_Idto_vor_ely_tff_ctthesea'vlca.i_penohdealingwithissu_of "p_blic condom" h eonm_st to pomona{ matter_ is speech ifaJrl'yint=preteM as Tehting to poHl_cak _g_-_al,o1'commt_ty oonc_-a_. See e.g. Moanflv'.D_k of L_o/', 60 MSPR 108, 113- 14 (1993),. In th_ _t that the speec-k_preondu,t speci/i_l i. the propose] rises to the level of "pubfic concern," that is, rel_te_ to poti_cal, social, or co;_atmity concerns, tirm the Agency :. must then eni;a_e ia the_ bahnoe test, a,nd as _ e_em_nt thexeofmum deanonstratc by preponderant evidence actualharm to ._genoy ¢,t_cjenf/, ;. B, It is FAM M_CIc_m's position l_tt the conduct an; _c_ch spcciflM h the proposal to_ch .: _- 4 i- • L !, SA56 Case: 11-3231 Document: 33 Page: 117 Filed: 05/30/2012 -- ..... wl f--_ --.f"vv_ i vL. vl , .d_ ! ii t._.t_ n))_Jt.t.L_ i" _t_l.v tdt | _vt. ,, v, FAXNO,618,87_..1837 H, 08 i on martin ofpublio con_c_ and tfl_roby tm_ltosto firat =rrmMmtm prot_tior_. FAM McClo_ at_o _'ts that the Ag_r_y ba_fail_to d_monstrate in theft rather thin roport ofim_'tlgatiou that h was acuity hmmex[in any Way by =ny of fho conduct or apeech _p¢_ificd in th_ proposal and that ther_for_ th_ ABsn_y imo_o_ts in tbi_ matter do _ot outweigh FAM M_Cleaa'_ interest.ln =peaking o_ trotters of public c.onearn. Therefore, th¢ removal ofFAM M,CIcan ii barred as a mstterof co_dtutionai law. A. _UBLICCONCERN A_ in_d above, _ thts_hold i_v is wl_th_r a_y of the _ondu_ or speech speoiti_l in cae.h of the thleo reasons of the propos_ rLseto the l_el ofpobli¢ ¢ormer_ In fa_t, the spotmh b'is_fied in the Proposal deal wholly with m.attcrs ofpx_blic c,on_ai _ad not imra-oflioo pm'onal mlcae_. Reason I charges FAM MoCl_m _tltlx making an 'tppoaranc_on the NBC Nightly Nov¢_ television broadt_t on September 9, 2604, Exhibit t ofd_e Agen_'y ROI apparently pml_orts to bo av_bafim re_tion ofth_ sub_ ofFAM McCloan's statomonmfxom that pxog_am,In , the firstparagr_h, F_ah_it I on th=f'._.tp_go, the _ubstmmo ofFAM McClcan's _eo_h i= -) cle,s_bed _ followv. 'Who FAM compliltin_J ofFAM's polM_, implyingthat tetroriaLsoan easily identify andou_FAM's th_a_ _dr_sscode polMes wer_ mot_hangcd." Clearly, the tmbstaucoofFAM MoClean's rom=a'l_ ks _po_cd in Bx_bit 1, if eomtratc, te_.ch on p_bltc oonc,em. It must be recked that according to th_ FAM position description, _e positlot_ is an ¢ . %mde*_oVof'position and the FAM'_ _pp0arance as apas,en_ on the airplano is _ot to b_ advertised, The ole_r import ofFAM .._eCloan'_ statem_xt _ r_orted at ]_yau'hit1 i_ that _ain polici_ of the Agenoy appear to unde;_ninp the sanctity o('the FAM's undercover stattm by S ) SA57 Case: 11-3231 Document: 33 Page: 118 Filed: 05/30/2012 vv& _ _vv,,t__ -_vl" vi,_¢._.m&l. Lv_ nZIVLL_ S 112.L_ _l'r&v_ Vnll slvl u_v_u.,Jvv_v 00T-]0-2006_I)04:24Ptl_'"_ 8ERC-FJ_ F_ tlO.51B87._1837 t.' 07 ...... \/' _ : i r "-. i j \./ making it ¢_ste_got _ potcaflalt_rml,ist_ sy/_ta F_O_ on _ a_l_]_uesna thereby,g_ a_ t , m:lva_tag¢ owr the FA.M_, pilot, erect, _ p_cmg_s, Fu_zr _'eidenoe of!h© s_bstanc¢ of FAN[Mc.C'l,-an'sroma_ oRthe NBC _.ov,,.arememonaliz_ at th,_bosom of Exlfib_t2 of t_e gel The remarks erifiqu_at FAg's ¢ho_lq_oint bypass prqo_d_o_ a_afl board/ng p_aod_¢s, dtess/gmomlngcodas,mand.'aotyhot_]._l_¢y,andFAMs'managemem sdlso]asur¢ofSensitive ' S_uity Infon'naflon to Itsws organizati_ns,._aoh as C'NN _d NBC Nightly News.. C i wheth_ lti_ ep_ooh _uched o,, a p_blio _o_rn, regar_ of wh_Lhm" FAM mana_emcn! agre_ with the_t_t ofthesp_,ch w not. T_ _st am_ndm_n_teos _pee_whidb is _,¢_,_ or inaoeurat¢,and _e obviouspoli_ytmd_yingthisprot_flpnistha_thegoveram_nl hasplaceda gr_" val_ on go!ring vafioga_d oph_on_.)o the, mark_t_ _ide_s _ _, _h _ _ ablal_ more efficiently.The pubic _,npIpye¢nttor_gs_2_ does hoe bav_ m be rish_but raCaerlh_speeahmerely has tatotmhN _li_soncem tobdlarot_tc'd. i . ¢ R Isob,_'io_thatthe _ttemnoc_r_.' r_odlymadeby FAM M_CImn_a Setomba 9, 2004, did not dealwith matter_ofpurc /pr_v'o.tocano_n br Intra,p_rsonalissuesInthcI,as Vegas off[o_. Pur_hcr, upon _xaminatk to_xhibi_ 5, WhiCh is an MSI'_C t'cpatt sfAugast 4.. 2004.,a_n_xlmat_}_ a monfllbefore11 September ap_o_fi'ano_,inthefifthparagraphfrom the boUom of that Exhibit, ,hta¢ i, furth_r _ ..f_c_ to ,h, s_called'%_! _d ti." dices cod, 0he subject of the Sc_tcmb_ 9, 2004 appe_,m_¢)l-- whioh makea teAMS oonspiouoas lo olh_r pass_gm and by extensionanyterm_ts _ho might be _rldng.This h.'an_arcnoyby virtu_era d,_ code oomplote_.ly compromiaes _i_prt_ at _ndzrcover work on an airplan_ aooording lo FAM SA58 Case: 11-3231 Document: 33 Page: 119 Filed: 05/30/2012 ;, ...... ; ...... Case: 11-3231 Document: 33 Page: 120 Filed: 05/30/2012 ? P, 09 i I IJ! observes_pldoua behavlorby a passenger.,_oordinS to FAMX_eCI_m,as outlin_l at Exhibit 5, WM_ is an Augt_t 4, 2004 artielo dc_lm_ v_th thi_ iBm2e, he b_g_v_ as woll as other FAM_, that 1his mandated report writing create 4 a '_e2et qgota" mentality and that FAMe believed that oven |f susplcio_ ecgvtty was not obsar_,,cd_ a surveillance report would have to he gen_eated and would thereforebe boggy,unreliable, a_ eonMved. Indeed,theKtingof those r_orts are t _peoiiienlly tied by Agency pottoy to th i, app_issl, evaluation prooc$s whereby it was _-xpressed . and implied to the FA.M_ that if such r_' or_.:were _ submitted the failure to submit a _p_n I .I t could have e n_8_dvo eife0t on the ap .p._s_, S_ e.g. Exhibit 7 of the ROI as follows: A July 8. 2004 e.mail wheat.In i, is reported that ti, o _!bv'de_oa ofrep.orts b_ part of eavh FAM's perfur_mc.e appraisal, a July 7, 2004 _rna_ wherein it is _ated rYm_th_ "may corn= an * . oocaslon" whom yOUJt_ don't _e _g _at of,h e _r dinary for a month at a (1_ , hV.t r m st_e that ffyuu'_e looking for it, you'll see s_m6!hlng." Aocarding _ FAM McCleach ",he e-mail ! . t_ggests th_ v_en ira FAM doesn't s_ an._h_g o_tof fl_e ordinary, but _mehow if y_u'rc . _ ! . lOOking for i_, you'll _ee it. This is a co_ail_on, h'ithvr a FAM sees suoptoious aotivlty or does • . | q • . o t, • not. Ira PAM ts looking for _t and s=es_t, t_ea aU the morv reason 1o file a rapeR, ffa FAM is . I looking for it buI does x_ot se_ it, th=r_ _holttd nol be n report fileA, tIowever, lool_ng at all the e-. q ma/lh it would be reportable for a F_ [tc_af_"thata _taveillanov _¢port _o_ld be filed oven if. aothlng su_pivio_ is observed, be0aus in _e essence o f_ch a tepat_ maaagvme4at may i_'¢r * that a PAM ia not "looking for it" hard enough and the$_by dowa_p_de a FAlVl on an apprfisal. I Taking all the e_mails togvthef, it appe msI_al with re@¢0t to th= oridoal element of obse'd, aliou of suspicio_ _tivity. the only b_nchm]_k _f su_e_; is filing a report. Ia the absence era report, I: • .! it appears that management would coa_ lg_ tba_ the FAM is falling offtl, am his or her ..! !. 8 SA60 Case: 11-3231 Document: 33 Page: 121 Filed: 05/30/2012 P, ]0 .... \.J ? .... .:. ., _@o_bili_. P&Id McCl_a w_ merely _porHng _ _oeptlo_ ofthevafiou_ PAMs concerning the o.mails m l_xhibi¢ 7 _d infoHrablysuck tmm_t_ report writing Would remdt in conmved profihng c¢ ruing mi_pimm_ .arb!_arily wRhout any barns_ resson mfor_lyin order to fulfill apc,rcdv_-_drcqukcm_ut to _hiev¢ a _acentappraise/. Rm_g _itrary su_/ciov.3 oJ_out p_sengcrs, profil_g p_s_ng_, an_ the llk_, olcarh/in,oh on p_blk concern since thoac activitieson theparto_l_wenforcc_emto_oe_s arenotommt#nzncedaccording_o oonstimtlomlor8rotator/law. "_o ooncom_ raised r+ga_dirg_bereportofthew_itlng,werenot confinedtoIn.ira-off,orepoliticsbutra_, _ised_ di_nc'_posm'bilitythudinnocentpssseng¢_ couldb_i,_ntsdsseuspiciou_oharao1_fo_no good reasontherebycompromisingthejntegrRy. ofthelawenforcementefforton behalfof +e flyiltgpublic.Therefore,t_¢speechatReason2 _ouohes on Loubl_oconcern, Inconnection with Reason2,durin_th__ of2003,e_pcoiaJlyinJulyand.Augtt_ 2003, the _ounWy was subject to a high 1brat alert and the oance.llatlon of remain overnight mi_sion__p throughAugust9,2003,foonl.d!havo,in FAM MoClcan'sr_on_hle belief oompromisgl the safety of the fb_g p_bli_: At n time of high thr_t of terrorist, long dlstan¢8 I 1 u'avclwotlldnotbo coveredby FAMe, AI__xhtbit 3,whichIs_ az_icleofJuly29,2003,ills public noncom dimension of the speechlmemorializcd _t the exhibit (which is sp_lfi_d at Rc_.son 2), clearly donoto_ lImt the safely o.flh_ flying publtooo_l_l be Mvorsely affected by cancollstioaof th_ overnightmissions. Thp article [email protected] w_ifio mention in the middle of the pagc that t]_ cancellation oohd_lM _lh 8i_6w high-level h/jacking throat issued by the Dcparanent of Homeland S_iP/. The W_ting fovenh_d_cat_ tlmt at least one office altaoks ; could bfoInstituted by !he end Of the sal_uhbr at _h_ ti_e of _ oani_follafionof the ovvmight -: .! < 10 SA61 Case: 11-3231 Document: 33 Page: 122 Filed: 05/30/2012 OOT-Ig-200(;_ 04"2B.....PH,J-.:'_RBERGER FAXNO.BIB,t=_I_37 P, II fiighLs, At a thne ofN_ tbrr.at, the high _ at planes w_r_ those that w_re tre.vellng aaross tb_ oountzy _d _ot to have any _AMs at all oa _em thm_/_hAugust 9_ o_uJd have seriously jeop,¢cffzed tile safety of the flyingpUb_.c, (_rly, t_e speech Uttered at Re_so,, 3 was who)_y " r rented to public conc.ccn. ' . , , e r . , o As f_rther ovldenoeof the public co@osm dimc't_l.on, a( _hiblt 4, cv(m t_. Agenoy itseli' 1 " _dioat_s at 11mtbffd paraNaph th_ it wa_ d_Ing an interu_ in_e_tlgatiou _o d=tormlno wh_thcr the dccidon to _ccl remah_ ovec_ght J_@ts t_o_ A_u_1 9_ w_ _n autbo,'_ccdby the Ageaoy, Clearly, _h_ Agency ittelfhad a c_o_m _t a mission could beja_pardlz_ by t oannell_on of thee romain ovemi_ _. f_th_" oan'pb'orat_gthepublicconcern _n of the _erauces g Iteaeon3. A_ g_ib{t 4{ Bm-b_ Bo_, aV.S, S_tor, spoke di_ on th_si_'v_ and Isreport_ 1oh_,= flnakeg t_e _r_al_ who came forward to tall the truth _bou_tbe_c canoellafion_ and brln_g _e "_uc to the -_p_tllghtSenator Boy.= is a publlo oNmal a_cLshewas _p_mngon _ maac_ ot'publlccon_erp,Laxly, ExNbxt 6 r_orta _ t}¢ ! Agency itself, a day after the Jt_ly 2g_ e_dpie , tevecaed it_ own poli.cy of pulling FAMs from the hi_ fl_'eat flight_ and immediately began id_ed_ag air m_--_al_ ba_k on tho_e cross countr/ and Jnt_n_onN tli_I_.Cte,arly, th_ d_op_ng of marshals fix)m flights th_ many exp¢_. I u_e_auaee at Re_._n 3 _eet.the lhreshoid_qulrem_t _ t_t a _ b_/_ci_g analysis cm't go forward. Indeed, at gxNbit 6 ig is r_o_ed that eVe_._ator Sc_umcr e_dlsdsuch I e-_eell_one_on_cnsi_al"i_a lctWrtoS_ro_m-yRidgem_dhe urged _ theAsenoy Lmmediately rvvar_ethezvpot-todP_'_i_Q iut_ _Bxs_ai_orvI¢oon coasttocoastazld intem_g'io_a] flights in _ght of_e high t_o_ tlst t_reet nt'_ho time, It would be wholly irtatlonal lO 11 SA62 Case: 11-3231 Document: 33 Page: 123 Filed: 05/30/2012 .--.+_ ...... F/_ _. 51687_ 1937 ...... _( "" .r P. 12 \ j-_ ; , (.} } toconoudethatthecommentsatReason3_vcr_notreal:trcl_te.dtopubliccanasta {u lightof • t the_videnoe even inthoROE Is sum. allofthe utt_sn_s spoc1_qe_iatRe_ons 1,2 and.:3az_matt_ of'publ_ oonc_. • = . whioh includ_tho FAMS checkpoint bypass!prooedwes, aiz_'aRbcm-ding procedure's, dr_s/_ooming cod_s, m_ndslory hot_lpol_y, FAMs' m_magem_zt's ¢on,temt deslre¢o d_vulgo I Bexzsifiqe_m'ity h_fomz_tion_onew# _ga_tion_ _d zhelike(Reason I),_e maz_dalcd l i sun,¢i_lan_¢ z'epo_, _bzferrNby rr_zy ]_A_ tob= mand_}t_ to be _ _'v_ in tIz_abse_ ' i of any reasonable_uspicionof"adv_e _ti_[tytherebyl_ling to_ozas orprofiLingJ_orderto m_'_ +prals_4 standards (Reasozz 2),an_ p_Uing FAMe qffofhi_h 1_skNghhs (P,e._on3), B. PICK.ERIN(3 BALANCING TEST{ i • The Ageuay has fallad to d_'_te Lnlhe RO[lhat _ of theu_tcrencas ml_ct_ _oucM ! on m_ ofpttbllccou_ern by FA-M Mcq]ema _tmcd a1_ a_ Itarmto _e Agcno7 mls_i_ In the_b=a_e _fpro_f of actv,_-I ham'_ A.g_n_ Int,_©M_dp not o'a'y_'_igh FAM M_Cl_zn'_ interestin _tklng on s_ch matters, : i The Agea_ fulledto demonstrateiny at_ud h a_. ¢oaeemiag any maXtprs a4dr_ed by FAM McCloan on $_tembor 9_ 2004,,4_g O_ NE_C N!/_ttlyNow_ progr'_s.Comments t - ooncembg _bedress code, bypss_ proced_¢_ end tb_llk_have aot b_n de_z_onsWat_in any i waytohavecausedacraslharm"to_zeA_ncy,IMeM, tizese¢onun_tsw_ oalculat_to prevent acnml harm by fnzthering the goaljofmaintainiz118thouadm-_ov_- a,atus of each of the FAMs. TAM MoCloas merely mdloated tl)a[ thoso pol_cs_s tcmdcd to rmd_n-_ue that potioy by ! : [ . . i ! • ; i 12 SA63 Case: 11-3231 Document: 33 Page: 124 Filed: 05/30/2012 / _'t'- 1g-_OOb Y_(_"-:_"" _._ __ NO, blU _;,_ l_[ .o t', I_ •making FAMs trm_paront to the public and _ terrorists as w¢_ Ch_z©byuctuMly causing _ or potenti_ harm to file mission of the AgencT. Ne_thdcss. the Asmoy cannot rely upcm the mere presumption of harm and the ab.eno_ ofart_a] harm o_ot _st_n Re..son 1, _gurther, the Agenoy Imafailccl to provide any evi_enoe showing actualharm in ¢onnoctio_ wl_ theut_anc_s oufliu_l.at Re.on 2. FAM MoClea_ spok_ out abo_t the d_'n_mentalimpa_! on th_ mi_8:ltyoflh_ FAM servioo_Le., p_ofilln8 and _porl quotas leading In lossof coo.fidenoe a_d trust by the t'_dag pmbli_W_o Ha]cadb_ing _j_fi_bly taln_ as susp_olo_ chm'aotora. The Agon_y_/'e/lad to flemo_ate any acres/harm to its mi_sio_ as a rc_uh _fFAM McCloan speaking ot_ about the martda_ry reporting r_lah'emonlx. Lestly, the Agonoy hss f_lled to show any _otual harm ccoccming FAM McCIe_'s u_tc_noes r_garding pulling FAM_ o_ofh_ghrisk flight, In f_ct, _e Agency i_If rever_eAits policy thcceby negatinganyability_ol_ove _ s-_n_ apparentlytho Agonoy a_ec4 wlr,_ F.A.M M_Cla_n lt_t it was impmvidcot to pul_ FAMs off _u_h flight_ at _h a_mo of high rl_k, Th_roforv, the AgoaoT missionwa_ againvntmuced and not adverselylmpact_l. The for_going momorializea tho subs_m_ _fthe vrd pre_r_lon made eraOctober14. 2005 andsppcar_thatbasedupon thvthresholdi_quiry_.fpublloc,o'ne_mandtho ba_g mtaly_is. FAM MoCle_,a'_ prlvil_8o a._d int_n_ In sp_ng on _ maUsr of ptlblia concern outweigl_ the gov_ament in_ezostin c_aaoring him and _erefor_ the instant adverse aetna is barr_ U a m_tlcr at'law, Thank you for yourooun_symm cooperailon, ...... I..£WrCnc¢Borg% Esq. 12 SA64 ]3 Case: 11-3231 Document: 33 Page: 125 Filed: 05/30/2012 .-q-_ UNITED STATES OF AMERICA kJ MERIT SYSTEMS PROTECTION BOARD WESTERN REGIONAL OFFICE Appeal of Docket Number SF-0752-06-0611-I-2 ROBERT J. MACLEAN, Appellant, V.. Received DEPARTMENT of HOMELAND SECURITY, NOV1_$ ZOO9 Agency. Merit Sy_tortmFrottztton Board TRANSCRIPT of the VIDEO-TELECONFERENCE HEARING Thursday, November 5, 2009 BEFORE: ADMINISTRATIVE JUDGE FRANKLIN M. KANG U.S. Merit Systems Protection Board Western Regional Office 201 Mission Street, Suite 2310 San Francisco, California 94105-1831 HEARING LOCATION: U.S. Merit Systems Protection Board Western Regional Office 201 Mission Street, Suite 2310 San Francisco, California 94105-1831 Telephone: (415) 904-6772 Fax: .(415) 904-0580 • .j.', k._/: • PALMER REPORTING SERVICES 1948 Diamond Oak Way Manteca, California 95336-9124 (800) 665-6251 SA65 Case: 11-3231 Document: 33 Page: 126 Filed: 05/30/2012 C APPEARANCES: For the Appellant LARRy A. BERGER_ Esq. (via video from the Mahon & Berger MSPB Washington, 21 Glen Street, Suite D D.C.): Glen Cove, New York 11542 THOMAS DEVINE, Esq. Government Accountability Project 1612 K Street, Northwest, Suite llO0 Washington, D.C. 20006 From the Agency: HEATHER BOOK, Esq. (via video from the MSPB Washington, D.C.) U.S. Department of Homeland Security Transportation Security Administration EILEEN DIZON CALAGUAS, Attorney Advisor JEFFREY J. VELASCO, Supervisory Attorney-Advisor U.S. Department of Homeland Security Transportation Security Administration Office of Chief Counsel TSA MSC West San Francisco Site 450 Golden Gate Avenue, suite 1-5246 Post Office Box 36018 San Francisco, California 94102 Telephone: 415-503-4602, -4601 Fax: 415-554-9501 Court Reporter: Nancy J. Palmer, Certified Electronic Reporter and Transcriber, CERT 00121 Palmer Reporting Services 1948 Diamond Oak Way Manteca, california 95336-9124 Proceedings recorded by digital recording; transcript produced by federally-approved reporting service. _ l PALMER REPORTING SERVICES 1948 Diamond Oak Way Manteca, California 95336-9124 (800) 665-6251 SA66 Case: 11-3231 Document: 33 Page: 127 Filed: 05/30/2012 m C INDEx Witnesses: Frank Donzanti Direct Examination: page 8 Cross-Examination: page 23 Redirect Examination: page 5] Recross Examination: page 57 Further Redirect Examination: page 64 Robert James MacLean Direct Examination: page 69 Cross-Examination/ Direct Examination: page 99 Redirect Examination: page 123 Recross/Redirect Examination: page 125 Further Redirect Examination: page 127 C C PALMER REPORTING SERVICES 1948 Diamond Oak Way Manteea, Californiz 95336-9124 (800) 665-6251 SA67 Case: 11-3231 Document: 33 Page: 128 Filed: 05/30/2012 MacLean _ DepLofHomeland Secuh_ 25 © 1 You testified that he had no disciplinary record. So 2 to what extent - to what extent did that make any difference 3 in your decision to remove him? 4 A. Very little. 5 Q. And you also indicated that he was s FAM in good standing. 6 To what extent did that have any -- make any 7 difference in your decision to remove him? 8 A. Very little. 9 Q. You talked earlier about the egregiousness of the offense. I0 Could you explain that a little bit more? What do ii you mean, that the offense was egregious? 12 A. • Well, he gave information on our --on our flights, a © 13 particular group of flights that were not covered, which 14 created a vulnerability. As soon as he gave that information 15 out to the media, it created a vulnerability within the 16 aviation system. And it set us up for a possible another 9/13 17 incident. 18 Q. How so? 19 A. "How so?" well, it gave people that would want to do us 2O harm information that certain flights weren't covered by Air 21 Marshals. And if you look at that, it makes thesystem 22 vulnerable, especially with flights leaving out of Las Vegas, 23 knowing that certain flights aren't covered, long-distance 24 flights are not being covered by Air Marshals. © 25 Q. Did you look to see if Mr. MacLean made this disclosure of PALMER REPORTING SERVICES 1948 Diamond Oak Way Manteca, California 95336:-9124 (800) 665-6251 SA68 Case: 11-3231 Document: 33 Page: 129 Filed: 05/30/2012 ;_.. _ :-, MacLean _ Dept. of Home_nd Security 46 O 1 of Mr. MacLean's disclosure. 2 Would canceling the flights that he protested have 3 created any vulnerability to the flying public? 4 A. I think it would. 5 Q. And was there any direct harm from Mr. MacLean,s 6 disclosure? 7 A. It created vulnerability as soon as he made the 8 disclosure. That would be the harm. 9 Q. Now "vulnerability" is kind of a speculative concept. I0 Was there any direct harm that actually occurred from 11 ]]is disclosure? 12 MS. CALAGUAS: Objection, move to strike the O 13. argumentative comment. 14 JUDGE KANG: The motion to strike is denied. You 15 know, I'm the Judge here. You don't have to worry about me 16 taking things out of context here. 17 Please repeat your question, Mr. Devine, for clarity. 18 MR. DEVINE: Yes, sir. 19 BY MR. DEVINE: 20 Q. Was there any actual harm'from Mr. MacLean's disclosure? 21 A. There could have been. From my perspective, I -- I know 22 that the division that -- 23 Q. Excuse me, sir. I didn't say "could have." 24 Was there any actual harm? Do you know of any? © 25 A. Well, I'm going to explain that in a minute. We have a PALMER REPORTING SERVICES 1948 Diamond Oak Way Manteca, California 95336-9124 (800) 665-6251 SA69 Case: 11-3231 Document: 33 Page: 130 Filed: 05/30/2012 CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 30th day of May, 2012, I caused to be sent by first class mail a copy of the foregoing "BRIEF FOR RESPONDENT, DEPARTMENT OF HOMELAND SECURITY" addressed to: Lawrence A Berger 7 Glen Street Suite 280 Glen Cove, NY 11542 Thomas Devine Legal Director Government Accountability Project 1612 K. St. NW, Suite 1100 Washington D.C. 20006