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MacLean v. DHS: Federal Circuit Judge Evan Wallach request of inspector general agent warning of reprisal

MacLean v. DHS: Federal Circuit Judge Evan Wallach request of inspector general agent warning of reprisal

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Published by Robert J. MacLean

MacLean v. DHS: Federal Circuit Judge Evan Wallach request of inspector general agent warning of reprisal

MacLean v. DHS: Federal Circuit Judge Evan Wallach request of inspector general agent warning of reprisal

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Published by: Robert J. MacLean on Jan 11, 2013
Copyright:Public Domain

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02/05/2014

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2011-3231
United States Court of Appealsfor the Federal Circuit
ROBERT J. MACLEAN,
Petitioner,v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.Petition for Review of the Merit Systems Protection Board in
Case
No.
SF0752060611-1-2
FURTHER SUPPLEMENTAL AUTHORITY ANDCORRECTION OF ORAL ARGUMENT CITATION
Agency counsel's January 7,
2013
supplemental authority filing referenced aMerit Systems Protection Board decision,
Edwards v. Department of Homeland
Sec.,
110
M.S.P.R. 243 (2008), to conclude that the Board's
2011
consideration of5 U.S.C. 2302(b)(10) in this proceeding was erroneous because jurisdiction in 49U.S.C.
40122(g)(2)(A)
only references the whistleblowing prohibited personnelpractice.
 
While that conclusion is true for subparagraph (A), 49U.S.C.
40122(g)(2)(H)
provides additional, independent jurisdiction under
5
USC 7701.Section
7701
(c)(2)(B) permits Board reversal of
a
personnel action "based on anyprohibited personnel practice described in section 2302(b) of
this
title...."At oral argument, Judge Wallach requested references to Mr. MacLeanbeing warned of possible retaliation if he acted further to challenge cancelation ofAir Marshal coverage on long distance flights targeted by the terrorists . Due to anear infection, counsel erroneously thought the request was for all conversationsbetween Mr. MacLean and his supervisor Mr. Schoffield, for which citations wereprovided during rebuttal. The audio recording revealed this mistake. The properreference for the warning isA212-13.The transcript text is as follows:"And I called the Oakland Field Office. And that's when I spoke to aSpecial Agent about — I don't know if
I
— I didn't immediately speak to a SpecialAgent. I probably spoke to a receptionist first, and I said, 'I'd like to speak to acriminal investigator.'"I spoke to him. I told him what's going on. He said he was very aware ofall the problems at the Air Marshals. He said, he goes, 'I fly, and it's prettyobvious who you guys are. Some people like to play who's the Air Marshal ontheir flight.' He was kind of making a big joke out of it."And he's just — and he I said, 'Well, what — what could be done here?Can there' —"And he goes,
'Uh,
this is this is there's nothing that could be done.Just — just walk away from it, don't don't bother. You know, you got a lot ofyears left in your career.' I think we had a discussion."There was no related examination of
this
testimony.
 
Respectfully submitted,Lawrence A. BergerGeneral CounselFederal Law Enforcement OfficersAssociationMAHON & BERGER70 Glen Street, Suite 280Glen Cove, NY 11542(516)671-2688Telephone: 516-671-2688Facsimile: 516-671-1148Email:FLEOAatty@aol.com 
'x/yfy\&.
Thomas DevineLegal DirectorGovernment Accountability Project1612
K
Street, NW, #1100Washington, DC 20006Telephone: 202-457-0034, ext. 124Facsimile: 202-457-0059

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