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MERIT SYSTEMS PROTECTION BOARD
WESTERN REGIONAL OFFICE
ROBERT J . MACLEAN,
DEPARTMENT OF HOMELAND
DATE: October 8, 2009
ORDER AND SUMMARY OF PREHEARING CONFERENCE
A prehearing conference was convened on October 7, 2009. The appellant
was represented by his attorneys Messrs. Devine and Berger, and the agency was
represented by Ms. Calaguas. The agency confirmed that it would timely conduct
a VTC test, inclusive of all bridges to facilitate potential multipoint conferencing.
The parties have been unable to settle this matter.
All agency prehearing submissions were received into the record without
objections. I informed the appellant that all requests to incorporate materials
found at specified hyperlinks, including but not limited to videos and texts, were
denied without exception and rejected from the evidentiary record. The agency
conveyed that it had reservations about the appellant’s submissions based on
hearsay, weight, and in the case of e-mails, authentication. I informed the agency
that it must object to specific exhibits rather than sharing general concerns. The
agency confirmed that it would convey any such objections on or before October
9, 2009, and that I would consider the objections thereafter. I informed the
appellant that while I would permit some level of flexibility in the materials
available for hearing, the appellant must establish, through evidence and
argument, what weight, if any, the Board should give any particular submission.
To the extent the appellant wishes to file supplemental submissions directly
related to his prior request to incorporate various hyperlinks as set forth above,
any such supplementation shall be received in this office and by the agency
within five calendar days of the date of this Order or shall be deemed waived.
The agency may object to any such supplementation within three calendar days
There no outstanding motions. The appellant stated that he was
considering a motion for sanctions, but no such motions were outstanding as of
the prehearing conference.
The following witnesses were requested by the appellant and approved
without objection from the agency. No subpoenas were requested or granted for
these witnesses because the first two are agency employees, while the third is the
appellant: Charles Ortman will testify regarding his reasons for proposing the
appellant for removal; Frank Donzanti will testify regarding his decision to
remove the appellant, including his consideration of the Douglas Factors and all
evidence, prior to his final decision, as a mutually requested and approved
witness; and the appellant was approved as a mutually requested and approved
The appellant initially requested, then withdrew, the following witnesses
through his revised prehearing submission of October 3, 2009: David Adams,
Robert Bray, Michael J ackson, Craig Sawyer, P. J effrey Black, Henry
Cunningham, Rhonda Schwartz, J ason Cervenak, Brian Ross, Asa Hutchinson, Ed
Epstein, Dana Brown, Robert Davidson, Robert J ohnson, Kent J effries, Gregory
Korniloff, Thomas Ruzevich, Spencer Pickard, Marc Parsons, David Graceson,
and Matthew Hayes. Based on the Board’s Opinion and Order in MacLean v.
Department of Homeland Security, 112 M.S.P.R. 4 (2009), and the issues
remaining in this appeal, I questioned the need for several of the remaining
witnesses. In MacLean, 112 M.S.P.R. 4, the Board addressed the issues of the
reviewability of the Sensitive Security Information (SSI) determination in this
case; and the applicability of the Whistleblower Protection Act to the matters in
this appeal. After considering the proffers, I am denying the appellant’s requests
for the following additional witnesses: Michael Lum, Robert Bond, Mike Mika,
George Taylor, Anthony Rine, J ames Wong, Andrew Colsky, Douglas Hladky,
Roger Schofield, Audrey Hudson, Maria Perez, J on Adler, Clark Ervin, Frank
Terreri, Brock Meeks, Thomas Quinn, Matthew Issman, and Douglas Hladky. In
discussing David Knowlton, the appellant argued that this witness was required to
probe the circumstances surrounding the destruction of the text message relevant
to the underlying specification, and to establish that the appellant’s appearance on
the NBC Nightly News broadcast on or about September 9, 2004 served as the
catalyst for the Office of Professional Responsibility (OPR) Investigation
underlying this appeal; however, the OPR report itself acknowledges the latter
proffer, and it is unclear how the subsequent disposition destruction of the text
message affects the charge, specification, and/or affirmative defenses before the
Board, therefore, this witness was denied. In requesting J ames Sawyer and J ustin
McBride, the appellant argued that these individuals were similarly situated
individuals who were not removed for disclosing SSI. Specifically, the appellant
alleges that Mr. Sawyer informed one or more passengers that he and his
coworkers were FAMs, while Mr. McBride informed one or more flight
attendants that he was a FAM, yet neither was removed. While it is unclear
whether Messrs. Sawyer and McBride were members of the Federal Law
Enforcement Officers Association (FLEOA), the appellant concedes that Mr.
Donzanti was not the deciding official in either of these other actions, and it
appears that the nature of the underlying acts of alleged misconduct, while
related, are not sufficiently similar in that this appeal involves an alleged
improper conveyance of information to the media, verses individual flight
attendants and/or certain passengers. For these reasons, I deny the appellant’s
request to call Messrs. Sawyer and McBride. Other than the mutual witnesses
identified above, the agency requested no other witnesses. For any witnesses
denied, I grant the appellant leave to resubmit the request for specific witnesses
with an individualized proffer based on a direct or attempted discussion with the
requested witness, to be received in this office within seven calendar days of the
date of this order, or it shall be deemed waived. The parties shall cooperate in
facilitating such discussions. No other witnesses were requested and/or
Burden of Proof
The parties were advised of their burdens of proof. The agency’s burden
includes its burden of proving, by a preponderance of the evidence,
it sustained, the elements therein, and the lawfulness the penalty imposed. See 5
C.F.R. § 1201.56(a)(ii). As such, the agency will present its case first, subject to
the appellant’s cross examination. The appellant’s presentation will follow.
Matters Presented for Decision in this Appeal
In issuing its decision on the September 13, 2005 notice of proposed
removal, the agency did not sustain Reason 1 alleging Unauthorized Media
Appearance, nor Reason 2 alleging Unauthorized Release of Information to the
Media. The remaining charge, Reason 3, was the sole basis for the removal in
Preponderance of the 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.
Charge: Unauthorized Disclosure of Sensitive Security Information (SSI).
The underlying specification contains background information and alleges that on
J uly 29, 2003, the appellant informed the media that all Las Vegas Federal Air
Marshals (FAMs) were sent a text message on their government issued mobile
phones that all remain overnight (RON) missions up to August 9th 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
RON deployments was protected as SSI.
For all charges, the agency must also establish the nexus; that it properly
considered factors relevant to its choice of action; and that the penalty in this
case did not exceed the maximum reasonable penalty. After discussing the basis
for the agency’s actions and in light of MacLean, 112 M.S.P.R. 4, the parties
agreed that other than the specified affirmative defenses below, the specification
and charge in this section are the only matters before the Board. No other issues
or matters are presented other than those identified in this section and the
affirmative defenses specified in below.
The appellant bears the burden of proving his affirmative defenses by
preponderant evidence. 5 C.F.R. § 1201.56(a). 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. § 1201.56(c). In discussing the appellant’s
affirmative defenses, the appellant clarified that FLEOA is strictly a professional
association; it is undisputed that the appellant is not in a recognized union, and
that none of his FLEOA activities were protected union activities.
An allegation that the agency's action was taken in retaliation for an appellant’s
protected union activity falls under 5 U.S.C. § 2302(b)(9)(A) and (B). To prevail on a
Here, the appellant alleges that the agency discriminated and retaliated
against him based on his membership and leadership status with the FLEOA for
other than merit reasons in violation of 5 U.S.C. § 2302(b)(10); and that this
discrimination and retaliation violated his First Amendment right of free
association and his right to free speech. No other affirmative defenses are alleged
in this appeal.
Any objections or exceptions to this summary and order must be received
within seven calendar days of the date of this Order that is sent to the parties via
e-file or facsimile to ensure immediate receipt, or shall be deemed waived.
FOR THE BOARD: ______________________________
Franklin M. Kang
Administrative J udge
claim of retaliation for union activity, an appellant has the burden of showing that (1)
he engaged in such activity; (2) the accused official knew of such activity; (3) the
adverse action under review could have been retaliation under the circumstances; and
(4) after carefully balancing the intensity of the motive to retaliate against the gravity
of the misconduct, there was a genuine nexus between the alleged retaliation and the
adverse action. See, e.g., Haack v. U.S. Postal Service, 68 M.S.P.R. 275, 282 (1995).
CERTIFICATE OF SERVICE
I certify that the attached Document(s) was (were) sent as indicated this
day to each of the following:
Electronic Mail Robert J . MacLean
20 Waltham Road
Ladera Ranch, CA 92694
Facsimile Larry A. Berger, Esq.
Mahon and Berger
21 Glen Street, Suite D
Glen Cove, NY 11542
Facsimile Thomas Devine, Esq.
Government Accountability Project
1612 K Street, NW, Suite 1100
Washington, DC 20006
Electronic Mail Eileen Dizon Calaguas, Esq.
Department of Homeland Security
TSA Office of Chief Counsel
450 Golden Gate Avenue
P.O. Box 36018
San Francisco, CA 94102
October 8, 2009