Pleading Number : 2010025229 Submission date : 2010-10-26 02:12:22 Confirmation Number: 1851935877 page 1 of 20 Table of Contents ! " # $ % % & ! Pleading Number : 2010025229 Submission date : 2010-10-26 02:12:22 Confirmation Number: 1851935877 page 2 of 20 Pleading Number : 2010025229 Submission date : 2010-10-26 02:12:22 Confirmation Number: 1851935877 page 3 of 20 UNI T E D ST A T ES O F A M E RI C A M E RI T SYST E MS PR O T E C T I O N B O A RD W EST E RN R E G I O N A L O F FI C E DOCKET NUMBER MANUEL ALCARAZ, SF 0752-10-1001-I-1 Appellant, APPELLANT’S OPPOSI T I O N T O AGENCY’S MOTION TO SEAL THE R E C O RD A ND C L OSE T H E H E A RIN G v. DEPARTMENT OF HOMELAND SECURITY, Agency. On or about October 15, 2010, the Agency filed a Motion to Seal the Record and Close the Hearing in the instant matter. Appellant, hereby opposes the Agency’s motion. The Board’s regulations provide, with few exceptions, that its hearings be open to the public. Closing a hearing, particularly over the objections of an appellant, is an extreme measure. 5 C.F.R. § 1201.52 provides that “[h]earings are open to the public. The judge may order a hearing or any part of a hearing closed, however, when doing so would be in the best interests of the appellant, a witness, the public, or any other person affected by the proceeding. Any order closing the hearing will set out the reasons for the judge’s decision. Any objections to the order will be made a part of the record.” In this case, the Agency has failed to make the requisite showing that it would be in “the best interests of the appellant, a witness, the public, or any other person affected by the proceeding” to close the hearing or seal the record. The Agency’s motion in this case is nothing more than a pro forma motion that makes blanket assertions that are unsupported by the record or fact. The first four pages of the Agency’s motion simply regurgitate the history of the Agency and the regulatory Alcaraz v. Dept. of Homeland Security, SF 0752-10-1001-I-1 1 Appellant’s Opposition to Agency’s Motion to Seal the Record and Close the Hearing Pleading Number : 2010025229 Submission date : 2010-10-26 02:12:22 Confirmation Number: 1851935877 page 4 of 20 framework for SSI. In support of its motion and in an apparent attempt to mislead the Board, the Agency attached two documents to its motion, neither of which has anything to do with this Chapter 75 appeal. Agency Exhibit A is a Statement of Work that applies to Transportation Security Officers, not Federal Air Marshals, alleging retaliation for whistleblower activity. Similarly, Agency Exhibit B, is an Interagency Agreement between the Board and the Agency regarding the adjudication of certain whistleblower appeals. Neither document applies to the instant matter. Contrary to the implications in the Agency’s moving papers, this case does not involve “misconduct” on the part of Appellant that, if revealed, would jeopardize the nation’s aviation security. This is not a case that involved any on-duty conduct by the Appellant. This is not a case that involved Appellant violating any rules or regulations regarding aviation security. This case will not reveal any facts about the security procedures in place to protect aviation security. The facts of the case are relatively straightforward. The Agency revoked Appellant’s top secret security clearance as a result of an off-duty incident that had nothing to do with aviation security. In revoking Appellant’s top secret security clearance, the Agency admittedly relied upon a report prepared by an outside agency, the Office of Personnel Management, and refused to provide Appellant with a copy of that report despite his demands for the document. Contrary to the Agency’s blatant misrepresentation, the record is not “replete with SSI.” Apparently, the entire basis for the Agency’s request to close the hearing and seal the record is its unsupported assertion that “[t]he record contains numerous documents indicating the names of various [Federal Air Marshals].” The statement implies that Appellant engaged in misconduct while on a mission or otherwise on duty, that other Federal Air Marshals were witness to the incident and that their testimony would somehow implicate aviation security. Nothing could be further from the truth. First, there is no evidence that any of the individuals whose name appears in any of the documents, aside from Appellant who is now a former employee, is a Federal Air Alcaraz v. Dept. of Homeland Security, SF 0752-10-1001-I-1 2 Appellant’s Opposition to Agency’s Motion to Seal the Record and Close the Hearing Pleading Number : 2010025229 Submission date : 2010-10-26 02:12:22 Confirmation Number: 1851935877 page 5 of 20 Marshal. The individuals involved in this action are all high ranking Agency officials, not rank and file Federal Air Marshals. Second, not a single document contained in the entire Agency File has been designated as Sensitive Security Information. While the Agency File provided to Appellant contains a “Sensitive Security Information Cover Sheet,” not one page of the Agency File contains the header or footer designation required by the Agency’s SSI regulations. The record cannot be “replete” with SSI when not a single document has been designated or marked as SSI. Third, the regulation upon which the Agency relies regarding the identity of FAMs specifically refers to “lists of the names” or other identifying information that identify “persons” (plural) as holding the position of Federal Air Marshal. Nothing in that section prohibits identifying an individual employee as a Federal Air Marshal or for the employee to identify himself or herself as a Federal Air Marshal. This is supported by the fact that the Agency routinely identifies Federal Air Marshals (and their supervisors) in its online newsletter for all the public to see. (See e.g. Exhibits 1-4). Certainly, the Agency would not violate its own regulations, on a recurring basis, by posting SSI on its public website. Finally, even if the identity of various, purported Federal Air Marshals is found to be SSI, there are less intrusive ways to restrict any potential disclosure of the information by utilizing the employee’s initials or some other unique identifier, rather than closing the hearing in its entirety and sealing the record in this matter, particularly when there is no information at issue that could compromise aviation security. The Agency concludes its argument with the threat that “if the record is not sealed and the hearing is not closed, the Agency will have no choice but to refrain from participating in the hearing.” The Board should not be blackmailed by the Agency’s threat. The hearing in this case has nothing to do with aviation security. The fact that a small handful of high ranking Agency officials, who may or may not be Federal Air Marshals, may testify about their function as a proposing or deciding official in the underlying action based on a charge of Inability to Maintain a Top Secret Security Alcaraz v. Dept. of Homeland Security, SF 0752-10-1001-I-1 3 Appellant’s Opposition to Agency’s Motion to Seal the Record and Close the Hearing Pleading Number : 2010025229 Submission date : 2010-10-26 02:12:22 Confirmation Number: 1851935877 page 6 of 20 Clearance does not implicate aviation security. The Board is a final check on the unbridled power the Agency has wielded up to this point by refusing to provide Appellant all of the information upon which the proposal and decision to revoke his clearance is based. The Agency should not be allowed to further conceal its actions and its blatant refusal to abide by the law by threatening to boycott the hearing in this matter if the record is not sealed and the hearing closed. Appellant respectfully requests that the Agency’s Motion to Seal the Record and Close the Hearing be denied. Respectfully submitted, GATTEY AND BARANIC A Professional Law Corporation Dated: October 25, 2010 By: /s/ Michael P. Baranic Attorneys for Appellant Alcaraz v. Dept. of Homeland Security, SF 0752-10-1001-I-1 4 Appellant’s Opposition to Agency’s Motion to Seal the Record and Close the Hearing Pleading Number : 2010025229 Submission date : 2010-10-26 02:12:22 Confirmation Number: 1851935877 page 7 of 20 10/25/2010 TSA: Off-Duty FAM Acts Quick, Nabs F… Off-Duty FAM Acts Quick, Nabs Felon News & Happenings February 11, 2008 A federal air marshal was recently recognized for assisting local law enforcement with the capture of a man wanted on multiple felony arrest warrants. While off duty in Atlanta, FAM Michael Godwin observed a man running from a car pulled over by police. Reacting swiftly, Godwin identified himself to police as a law enforcement officer and joined in the foot pursuit. Godwin caught up to the suspect with his service weapon drawn, and after repeated warnings to stop, tackled the suspect. The police arrived and took the suspect into custody. "FAM Godwin’s situational awareness, sound judgment and his assistance to fellow law enforcement colleagues is commendable," said Atlanta Special Agent in Charge Arnold Cole. Special Agent in Charge Arnold Cole (right), Federal Air Marshal Service, Atlanta field office, congratulates FAM FAM Michael Godw in for helping capture a felon.