U.S. MERIT SYSTEMS PROTECTION BOARD Office of the Clerk of the Board 1615 M Street, NW Washington, DC 20419-0002 Phone: (202) 653-7200; Fax: (202) 653-7130; E-Mail: [email protected]Clerk of the Board November 18, 2015 Robert J. MacLean 20 Waltham Road Ladera Ranch, CA 92694 Dear Mr. MacLean: Enclosed please find a new copy of the initial decision issued in your appeal, MSPB Docket No. SF-0752-06-0611-M-1. After review by the Transportation Security Administration’s Sensitive Security Information (SSI) office, it was determined that the initial decision did not contain any SSI, so the enclosed copy has had all protective markings removed. Should you have any questions, please contact my office. Sincerely, William D. Spencer Clerk of the Board Enclosure cc: Lawrence A. Berger, Esq. Mahon and Berger 21 Glen Street, Suite D Glen Cove, NY 11542 Thad M. Guyer, Esq. 116 Mistletoe Street Medford, OR 97501
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U.S. MERIT SYSTEMS PROTECTION BOARDonline.wsj.com/public/resources/documents/2015_1121_MacLean.pdfMacLean v. Department of Homeland Security, 116 M.S.P.R. 562 (2011). The U.S. Court
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U.S. MERIT SYSTEMS PROTECTION BOARD Office of the Clerk of the Board
November 18, 2015 Robert J. MacLean 20 Waltham Road Ladera Ranch, CA 92694 Dear Mr. MacLean: Enclosed please find a new copy of the initial decision issued in your appeal, MSPB Docket No. SF-0752-06-0611-M-1. After review by the Transportation Security Administration’s Sensitive Security Information (SSI) office, it was determined that the initial decision did not contain any SSI, so the enclosed copy has had all protective markings removed. Should you have any questions, please contact my office.
Sincerely, William D. Spencer Clerk of the Board
Enclosure cc: Lawrence A. Berger, Esq.
Mahon and Berger 21 Glen Street, Suite D Glen Cove, NY 11542 Thad M. Guyer, Esq. 116 Mistletoe Street Medford, OR 97501
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Thomas Devine, Esq. Government Accountability Project 1612 K Street, NW, Suite 1100 Washington, DC 20006 Eileen Dizon Calaguas, Esq. Department of Homeland Security Transportation Security Administration Office of Chief Counsel 450 Golden Gate Avenue, Suite 1-5246 P.O. Box 36018 San Francisco, CA 94102
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
WESTERN REGIONAL OFFICE
ROBERT J. MACLEAN, Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Agency.
DOCKET NUMBER SF-0752-06-0611-M-1
DATE: November 3, 2015
Thad M. Guyer, Esquire, Medford, Oregon, for the appellant.
Thomas Devine, Esquire, Washington, D.C., for the appellant.
Eileen Dizon Calaguas, Esquire, San Francisco, California, for the agency.
BEFORE Franklin M. Kang
Administrative Judge
INITIAL DECISION
INTRODUCTION The appellant timely appealed the Transportation Security Administration’s
decision to remove him from the position of Federal Air Marshal (FAM), with
duties in Los Angeles, California, effective April 11, 2006. Initial Appeal File 1
(IAF-1), Tabs 1, 4. On October 5, 2006, an administrative judge dismissed this
appeal without prejudice at the request of the appellant. IAF-1, Tab 29.
On October 15, 2008, the appellant timely refiled this appeal. Initial
Appeal File 2 (IAF-2), Tab 1. On June 22, 2009, the Board issued an Opinion
and Order (O&O) addressing matters certified for interlocutory appeal. MacLean
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v. Department of Homeland Security, 112 M.S.P.R. 4 (2009); IAF-2, Tab 27. A
hearing was held on November 5, 2009 as specified below. Hearing Compact
Disc (HCD). The appellant traveled from California to Virginia to appear with
his attorneys from the Board’s Washington Regional Office by video-conference,
while the agency appeared from the Board’s Western Regional Office in
California as well as the Washington Regional Office. Id. Through the initial
decision (ID), the agency’s action was affirmed as a matter within the jurisdiction
of the Board. IAF-2, Tab 84; see 5 U.S.C. §§ 7511-7513 and 7701.
Through a subsequent O&O that followed the appellant’s petition for
review, the Board affirmed the ID as modified. MacLean v. Department of
Homeland Security, 116 M.S.P.R. 562 (2011). The U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) thereafter vacated MacLean, 116 M.S.P.R. 562,
and remanded the matter for the Board to determine whether the appellant made a
protected disclosure under the Whistleblower Protection Act (WPA). MacLean v.
Department of Homeland Security, 714 F.3d 1301 (Fed. Cir. 2013); Remand
Appeal File (RAF), Tab 1. The Supreme Court of the United States thereafter
affirmed the judgment of the Federal Circuit, and the Board remanded this case to
the administrative judge for further proceedings. Department of Homeland
Security v. MacLean, 135 S.Ct. 913 (2015); RAF, Tabs 2, 3. For the reasons
explained below, the agency’s action is REVERSED.
ANALYSIS AND FINDINGS Burden of Proof and Applicable Law
The agency bears the burden of proof by preponderant evidence with
respect to the reasons for the action and its choice of penalty. 5 C.F.R.
§ 1201.56(b). Preponderant evidence is defined as the degree of relevant
evidence that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be true than
untrue. 5 C.F.R. § 1201.4(q).
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Background
At the time of his removal, the appellant, born in 1970 with a service
computation date in 1992, was a preference eligible FAM, SV-1801-9, assigned
to Los Angeles, California. IAF-1, Tab 4, Subtab 4F; IAF-2, Tab 45, Exhibit S.
It is undisputed that the appellant was an employee pursuant to 5 U.S.C.
§ 7511(a)(1) at the time of his removal.
According to a Report of Investigation in the record evidence, based on a
September 2004 report of an unauthorized media appearance by the appellant, the
agency initiated an investigation. IAF-1, Tab 4, Subtab 4J. Following an
investigative interview conducted by the agency’s Immigration and Customs
Enforcement Office of Professional Responsibility, the agency’s investigators
concluded, inter alia, that the appellant made an unauthorized release of
information to the media. Id.
On September 13, 2005, the appellant received a Proposal to Remove
(proposal or proposed removal), charging the appellant with Unauthorized Media
Appearance, Unauthorized Release of Information to the Media, and
Unauthorized Disclosure of Sensitive Security Information (SSI). Id., Subtab 4G.
On April 10, 2006, Special Agent in Charge Frank Donzanti issued a decision on
the proposed removal, sustaining only the third charge and the proposed penalty.
Id., Subtab 4A. The third charge, Unauthorized Disclosure of SSI, is
accompanied by a single specification. IAF-2, Tab 67 at 5-6. The underlying
specification contains background information and alleges that on July 29, 2003,
the appellant informed the media that all Las Vegas FAMs were sent a text
message on their government-issued mobile phones that all remain overnight
(RON) missions up to a specified date would be cancelled, or words to that effect,
and that this constituted an improper disclosure of SSI because the media person
to whom this information was disclosed was not a covered person within the
meaning of SSI regulations, and the information about RON deployments was
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protected as SSI. Id. On May 10, 2006, the appellant timely filed his petition for
appeal. IAF-1, Tab 1.
On August 31, 2006, the agency’s SSI Office Director issued a final order
(AFO) on SSI related to this appeal, stating in part that the information in
question constituted SSI under the SSI regulation then in effect, as the
information concerned specific FAM deployments or missions on long-distance
flights. See IAF-1, Tab 29. The first underlying ID explained that the appellant
intended to seek review of the AFO, and dismissed the appellant’s appeal without
prejudice to refiling. Id. The ID thereafter became the final decision of the
Board. See id. On September 16, 2008, the U.S. Court of Appeals for the Ninth
Circuit (9th Circuit) ruled on the appellant’s petition for review of the AFO.
MacLean v. Department of Homeland Security, 543 F.3d 1145 (9th Cir. 2008). In
denying the appellant’s petition, the Court wrote, in part:
In late July, 2003, while working as a Federal Air Marshal in Nevada, MacLean received a text message on his government-issued cell phone stating that “all RON (Remain Overnight) missions ... up to August 9th would be cancelled.” .... [] The information contained in the text message qualifies as “sensitive security information.” The message contained “specific details of aviation security measures” regarding “deployment and missions” of Federal Air Marshals. 49 C.F.R. § 1520.7(j) (2003). .... MacLean has failed to demonstrate what more the TSA needed to show to support the order.
Id. On October 15, 2008, the appellant timely refiled this appeal. IAF-2, Tabs 1,
2. It is undisputed that at the time of the events at issue, inclusive of the
specification before the Board, the appellant was assigned to the FAM service
center in Las Vegas, Nevada. See IAF-2, Tab 45, Exhibit X; IAF-2, Tab 49,
Exhibit PPP. On February 10, 2009, the Board granted a motion to certify
specific rulings for interlocutory appeal affecting the appellant’s affirmative
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defenses under the WPA that were subsequently addressed by the Court as set
The Merit Systems Protection Board neither endorses the services provided
by any attorney nor warrants that any attorney will accept representation in a
given case.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium, Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay System), a statement certifying any lump sum payment with number of hours and amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS: 1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer. b. Statement that employee was ready, willing and able to work during the period. c. Statement of erroneous payments employee received such as; lump sum leave, severance pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts. 1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63) e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected. (if applicable)
Attachments to AD-343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement. (if applicable) 2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a-g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.