Robert MacLean Alleges That The Merit Systems Protection Board Distorted The Record in Order To Canc
In his United States Court of Appeals for the Federal Circuit briefs, MacLean alleges that the United States Merit Systems Protection Board (MSPB) distorted the record in order to cancel out his "good faith belief" defenses afforded to him by the United States Court of Appeals for the Ninth Circuit in their September 16, 2008 decision:
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MacLean may still contest his termination before the MSPB, where he may raise the Whistleblower Protection Act (WPA) of 1989 and contend that the lack of clarity of the TSA's 2003 'sensitive security information' regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as 'sensitive security information'. |
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MacLean's allegations are supported in the entire history of the TSA's filings and the MSPB's July 25, 2011 final decision. Both the TSA and MSPB consistently omit a key quote from a TSA lawyer during MacLean's August 2, 2006 deposition.
Despite his consistent testimony to the internal affairs investigators and to the MSPB administrative judge that he believed he did not disclose SSI or classified information to the reporter, the MSPB ruled that since MacLean once told the TSA lawyer in his August 2, 2006 deposition that "it did not matter" if he had disclosed SSI or classified information to a supervisory Federal Air Marshal, MacLean would have disclosed the information to the reporter regardless of whether or not it was classified or marked SSI. In the TSA's preceding briefs filed with the MSPB and the MSPB's July 25, 2011 final decision, both omitted the fact that MacLean's response was to the TSA lawyers question about his July 2003 conversation with a supervisory Federal Air Marshal, not a reporter. In their exchange during the August 2, 2006, both MacLean and the TSA lawyer make no mention of the reporter or any member of the media:
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PAGE 91: TSA lawyer: In discussing the cancellation of RON missions, with Mr. Scoffield, did you know whether or not you, were discussing sensitive security information? MacLean: It did not matter. TSA lawyer: Why didn't it matter? MacLean: Because the law was being broken and the public was being endangered, and it was an abuse of, authority. Public lives were at risk. It did not matter to me whether it was, confidential, law enforcement sensitive, or, classified information. It was breaking the ] law and it, was endangering life. |
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MacLean argues that the omission of the TSA lawyer's question, regarding the supervisory Federal Air Marshal, invalidates the TSA and MSPB's claims that MacLean did not have a "good faith belief."
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