U.S. Merit Systems Protection Board 
Case Report for May 3, 2013

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  Cesar H. Figueroa
Agency:  Department of Homeland Security
Decision Number:  2013 MSPB 33
Docket Number:  DA-0752-12-0001-I-1
Issuance Date:  April 26, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Falsification
Board Procedues - Discovery
Penalty - Disparate Penalties

    The appellant petitioned for review of an initial decision that affirmed his removal on a falsification charge and found that he failed to prove his claim of disparate penalties.  Regarding the latter, the administrative judge denied the appellant's request to compel discovery as to all supervisors who had been charged with similar misconduct, finding that such information did not appear reasonably calculated to lead to the discovery of admissible evidence.  

Holdings:  The Board affirmed the administrative judge's findings with respect to the sustained charge and the nexus of that charge to the efficiency of the service, but vacated the judge's findings with respect to the reasonableness of the penalty, including the appellant's claim of disparate penalties, and remanded the case to the regional office for further adjudication:

1. The judge properly found that the agency proved the charge of falsification, rejecting the appellant's argument that he should have been charged with the lesser charge of lack of candor.  The judge properly found that the agency established that the appellant acted with the intent to deceive.

2. The judge abused his discretion in denying the appellant's motion to compel disclovery.

a. To establish disparate penalties, an appellant must show that there is enough similarity between both the nature of the misconduct and other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently.  If an appellant does so, the agency must then prove a legitimate reason for the difference in treatment by a preponderance of the evidence.  

b. The appellant's document request relating to potential comparator employees was reasonably calculated to lead to the discovery of admissible evidence.  Specifically, if the appellant could show that supervisory employees -- who are held to a higher standard -- were treated less harshly than the agency treated the appellant for similar misconduct, the appellant would have met his disparate penalty burden and triggered the agency's burden to explain the difference in treatment.  

    In a brief separate opinion, Member Robbins concurred with the disposition, stating that the precedents cited are controlling and were applied correctly.  He expressed his continuing concerns with the Board's recent decision concerning disparate penalty claims, which relaxed the long-established, well-understood and easily managed test for impermissible disparity in penalties.  He repeated his view that the Civil Service Reform Act's scheme for employee discipline should tolerate localized or organizational differences in penalties, so long as the penalty in any particular case is reasonable and consistent under the balancing of all appropriate Douglas factors.  


Petitioner:  Robert J. MacLean
Respondent:  Department of Homeland Security
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3231
Issuance Date:  April 26, 2013

Whistleblower Protection Act
 - Protected Disclosure
 - Disclosures Specifically Prohibited by Law

    The court reviewed the Board's final decision sustaining MacLean's removal from the position of Federal Air Marshal on a charge an unauthorized disclosure of sensitive security information (SSI).  In July 2003, all Marshals received a briefing that there was a "potential plot to hijack U.S. Airliners."  Soon after this briefing, the agency sent an unencrypted text message to the Marshals' cell phones cancelling all missions on flights from Las Vegas until early August.  MacLean became concerned that suspension of overnight missions during a hijacking alert created a danger to the flying public.  He complained to his supervisor and to the Office of Inspector General, but they responded that nothing could be done.  Dissatisfied, MacLean disclosed the text message to an MSNBC reporter so as to "create a controversy resulting in [its] rescission."  MSNBC published an article criticizing the directive, and the agency withdrew it after several members of Congress joined in the criticism.  When the agency later discovered that MacLean was the source of the disclosure to MSNBC, it removed him on a charge of unauthorized disclosure of sensitive security information in violation of an agency regulation.  MacLean challenged his removal to the Board, arguing that his disclosure of the text message was protected whistleblowing activity, namely a disclosure of a "substantial and specific danger to public safety."  The Board determined that MacLean's disclosure fell outside the Whistelblower Protection Act (WPA) because it was "specifically prohibited by law" under 5 U.S.C. 2302(b)(8)(A), and sustained the removal action.  

Holdings: Finding that the Board incorrectly interpreted the WPA, the court vacated the Board's decision and remanded for a determination whether MacLean's disclosure qualifies for WPA protection:

1. The court found without merit MacLean's contentions that:  (1) The agency did not charge him under the correct regulation; (2) he was denied due process in that he did not know he was violating agency rules when he revealed the content of the text message and that he believed in good faith that the message did not constitute SSI; (3) the Board failed to adequately analyze the Douglas factors in assessing the reasonableness of the removal penalty; and (4) the agency committed a prohibited personnel practice by retaliating against him for union-related activities.  

2. The Board erred in finding that MacLean's disclosure was "specifically prohibited by law" within the meaning of the WPA.  

a. The WPA prohibits individuals in positions of authority from taking a "personnel action" against a government employee "because of any disclosue of information by an employee . . . which the employee . . . reasonably believes evidences . . . a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law . . . ."  

b. The parties do not dispute that, in order to fall under the WPA's "specifically prohibited by law" proviso, the disclosure must be prohibited by statute rather than by regulation.  The statute in question is the Aviation and Transportation Security Act (ATSA), 49 U.S.C. 40119(b)(1), which provides that "the Secretary of Transportation shall prescribe regulations prohibiting disclosure of information obtained or developed in ensuring security under this title if the Secretary of Transportation decides disclosing the information would . . . be detrimental to transportation safety."

c. The court agreed with MacLean that the ATSA does not "specifically prohibit" the disclosure at issue in this case.  The ATSA's plain language does not expressly prohibit employee disclosures, and only empowers the agency to prescribe regulations prohibiting disclosure of SSI "if the Secretary decides disclosing the information would . . . be detrimental to public safety."  Thus, the ultimate source of prohibition of MacLean's disclosure is not a statute but a regulation, which the parties agree cannot be "law" under the WPA.  

     In a brief concurring opinion, Judge Wallach stated that MacLean "presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public," and "emphasize[d] that the facts alleged, if proven, allege conduct at the core of the Whistleblower Protection Act."
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