UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WESTERN REGIONAL OFFICE __________________________________________ ) ROBERT J.

MACLEAN, ) DOCKET NUMBER: Appellant, ) SF-0752-06-0611-I-1 ) v. ) ) ADMINISTRATIVE DEPARTMENT OF HOMELAND SECURITY, ) JUDGE: TRANSPORTATION SECURITY ) Franklin M. Kang ADMINISTRATION, ) Agency. ) ) September 2, 2009 AGENCY’S OPPOSITION TO MOTION TO COMPEL The Agency opposes Appellant’s motion to compel on the following grounds: A) the motion is untimely; B) Appellant seeks to conduct new discovery, a request which already has been denied; and C) in light of the discovery orders in this case, the Agency’s objections are appropriate and should be sustained. I. ARGUMENT A. Appellant’s Motion to Compel is Untimely. After specifically raising an untimeliness objection during the August 11, 2009 status conference, the Agency hereby further discusses the basis of its objection to Appellant’s entire motion. 1 As set forth in the Initial Decision, the Administrative Judge granted Appellant five days after the timely re-filing of this appeal to submit any motions to compel. Initial Decision, dated Oct. 5, 2006, at p. 4. Appellant re-filed his appeal, which the
The Agency objects to the admissibility of exhibits attached by Appellant in support of his motion to compel. Exhibits 2, 4-7, 11-13, 15-25, 29-33, 34, 37-38 are irrelevant and lack authentication or any indicia of reliability and on these grounds, should be stricken from the record. The Agency reserve the right to make specific objections should Appellant offer any of these documents as hearing exhibits.
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Administrative Judge acknowledged on October 16, 2008. Acknowledgment Order, dated Oct.16, 2008, at p. 1. Within the five-day period in which to submit any motion to compel, the Administrative Judge held a conference call and issued an Order essentially holding this discovery issue in abeyance. Order, dated Oct. 20, 2008. After an interlocutory appeal to the full Board, the parties received notice, on July 22, 2009, that this matter had been reassigned and that “[a]ny and all submissions filed by the parties must be directed to Administrative Judge Kang.” Order, dated July 22, 2009. Appellant failed to bring any motion to compel or otherwise raise this discovery issue until August 10, 2009. 5 C.F.R. section 1207.73(d)(4) requires the filing of motions to compel within 10 days of the date of the service of objections. The Administrative Judge previously enlarged this time by granting an additional five-day period, but this new deadline expired by the time that Appellant raised the issue again on August 10, 2009—19 days after receiving notice to direct all submissions to Administrative Judge Kang. Appellant has failed to proffer any good cause for his delay, which has not been excused. See Order, dated Aug. 11, 2009, at p. 3. As such, Appellant’s entire motion to compel should be denied. 1. Appellant has waived any motion to compel additional responses to Interrogatory No. 5 and Request for Production No. 8. Appellant seeks to compel further response to Interrogatory Number 5 and Request for Production Number 8 regarding the Agency’s investigation into the allegations against him. Appellant’s Motion at pp. 6, 10. The Agency timely objected to these discovery requests on several grounds, including overbroadness and relevancy. See Appellant’s Ex. 9 at pp. 1-2, 4-5. On July 21, 2006, Appellant brought a motion to

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compel but failed to identify Interrogatory Number 5 or Document Request Number 8 in that Motion; therefore, Appellant waived his right to file a motion to compel on these requests. See 29 C.F.R. § 1201.72(d)(2); also Appellant Motion to Compel, filed on July 21, 2006. Appellant fails to proffer any good cause why his failure to bring a timely motion to compel additional responses should not be deemed a waiver. During the period of time in which to bring such a timely motion, Appellant was fully aware of the existence of the February 11, 2005 memorandum from then Director Thomas Quinn to Assistant Secretary for Immigration and Customs Enforcement (ICE) Michael Garcia. The Agency had already produced it, and Appellant cited to it in support of his Motion to Subpoena Thomas Quinn, filed on July 21, 2006. Therefore, Appellant cannot rely upon this memorandum as a basis to toll his untimely request for any additional responses. 2 2. Appellant has waived any additional response to Interrogatory No. 17. Similarly, Appellant previously has failed to include the Agency’s response to Interrogatory Number 17 regarding his First Amendment defense, in any timely motion to compel. See Appellant’s Motion at p. 13; also Appellant Motion to Compel, filed on July 21, 2006. As such, this issue should be deemed waived. See 29 C.F.R. § 1201.72(d)(2).

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Moreover, Appellant’s reliance on an alleged ICE report is misplaced. Appellant’s Motion at p. 7. Appellant fails to establish that this report remains in TSA’s custody or control, inasmuch as he alleges that ICE possesses this report. Ex. 12. According to Appellant, this report pertains to a former supervisor (David Knowlton) at the Las Vegas Field Office, and there is no basis in the record to support any allegation that this supervisor was in any way involved in Appellant’s removal.

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B. Appellant Improperly Seeks to Conduct New and Additional Discovery. Appellant does not limit his motion to compel to issues appropriate for this type of discovery motion. 5 C.F.R. section 1207.73(d)(2) already afforded Appellant the opportunity to serve supplementary discovery requests within 7 days of the date of service of the Agency’s prior responses. Appellant did not utilize this discovery procedure in any timely manner and should be barred from circumventing such a procedural requirement through this motion. See 29 C.F.R. § 1201.72(d)(2); also Ex. 1 and 2 attached hereto. 1. The Administrative Judge already has rejected Appellant’s request to reopen discovery. At pages 14, 17, and 19 of his motion, Appellant requests—for the first time in this proceeding—the production of the following four documents: July 23, 2003 FBI Bulletin titled “Hijack warning of weapons and explosives smuggled onto aircraft”; undated “Worldwide Caution” issued by the State Department; May 18, 2006 Report issued by the Homeland Infrastructure Threat Analysis Center; and a May 25, 2006 Congressional report titled “In Plane Sight: Lack of Anonymity at the Federal Air Marshal Service Compromises Aviation and National Security.” Absent a specific showing that these documents are otherwise responsive to a previously-requested document request, these new discovery requests should be rejected. See Order, dated August 11, 2009, at p. 4; Order, dated Oct. 4, 2006, at p. 3. 2. Appellant improperly seeks to compel additional depositions. Moreover, Appellant previously took the following 4 depositions: Frank Donzanti, Person Most Knowledgeable (Andrew Colsky); Thomas Quinn; and David Adams. Appellant now seeks to take an additional 7 depositions, notwithstanding the

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Administrative Judge’s explicit orders denying additional discovery in this matter: Robert Davidson; Jason Cervenak; Robert Bond; Mike Mika; Robert Bray; Asa Hutchinson; and Michael Lum, as well as re-deposing Thomas Quinn and David Adams. Appellant’s Motion at pp. 34-47. Appellant’s untimely request is impermissible because he exceeds the number of depositions permitted under 5 C.F.R. section 1201.74(e)(2). Appellant also fails to follow the applicable procedures to request the issuance of a deposition subpoena for those who are no longer Agency employees (Davidson and Hutchinson) or employed by a non-party Agency (Cervenak). 5 C.F.R. § 1201.73(b). More significantly, however, Appellant fails to make any showing of relevancy to the remaining issues in this case. Also see Order, dated Aug. 21, 2006 at p. 3. The Board regulations clearly prohibit this type of fishing expedition. 5 C.F.R. §§ 1201.72(b), (d). Finally, as to re-deposing Quinn and Adams, Appellant fails to identify with any specificity or citations to the available deposition transcripts, the relevant subject areas which he alleges that he was unable to discover. Absent such a showing, compelling any further responses to any particular deposition question (and over the Agency’s timely objections) should be denied. See 5 C.F.R. § 1201.72. Appellant’s additional request for sanctions should also be denied as being completely unsupported. Appellant’s Motion at pp. 38, 46. The Agency denies that any improper coaching of any witnesses took place. Id.

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C. Appellant Seeks to Compel Irrelevant Evidence. 1. Appellant’s Request for Production No. 12 is moot. Appellant moves to compel the production of the text-message that does not exist. Appellant’s Motion at p. 11. This issue is moot. The Agency has not challenged Appellant’s characterization of the text message as set forth in his sworn affidavit, including the fact that the text message was unaccompanied by any marking as Sensitive Security Information. Agency File, Tab 4(J) at 11. Moreover, both parties have reliedupon this undisputed fact in briefings filed with the Ninth Circuit and before this Board. MacLean v. DHS, 543 F.3d 1145, 1148-1149 (9th Cir. 2008). 2. Appellant’s Request for Production No. 25 is overbroad and seeks irrelevant information. Appellant also moves to compel the production of any Agency investigation into any other employee’s unauthorized disclosure of Sensitive Security Information (SSI). Appellant’s Motion at p. 12. Appellant appears to argue that, on some unidentified date, he has since learned that three other Federal Air Marshals have received discipline for the unauthorized disclosure of SSI. Id. at pp. 12-13. Assuming for the purposes of this motion only, that Appellant’s allegations about these other disciplines are accurate, such information is irrelevant to the remaining issues in this case. None of the cited comparators’ alleged misconduct arose out of the Los Angeles Field Office, and as such, none of the alleged comparators’ discipline were decided by Frank Donzanti, who was the deciding official in the Agency’s decision to remove Appellant. Agency File, Tab 4(G) at p. 2. Therefore, this requested information is not “directly material to the issues involved in the appeal” and any further motion to compel should be denied. 5 C.F.R. § 1201.72(b).

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II.

CONCLUSION

For the reasons discussed above, Appellant’s motion to compel should be denied in its entirety. Respectfully submitted, ____________/s/______________________ Eileen Dizon Calaguas Attorney-Advisor, Office of Chief Counsel Transportation Security Administration San Francisco Mission Support Center

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CERTIFICATE OF SERVICE I certify that the attached Opposition to Motion to Compel and Exhibits were sent as indicated this 2nd day of September 2009 to each of the following: Via E-file Via E-file Appellant Robert J. MacLean Appellant’s (former) Representative Peter H. Noone, Esq. Patrick Tinsley Avery, Dooley, Post & Avery, LLP Board Hon. Franklin Kang Administrative Judge Western Regional Office ____________/s/______________________ Eileen Dizon Calaguas Attorney-Advisor, Office of Chief Counsel Transportation Security Administration San Francisco Mission Support Center 450 Golden Gate Avenue, Suite 1-5246 P.O. Box 36018 San Francisco, CA 94066 (415) 503-4602 (office) (415) 554-9501 (facsimile) eileen.calaguas@dhs.gov

Via E-file

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