UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

ROBERT J. MACLEAN,
Appellant,

DOCKET NUMBER
SF-0752-06-0611-M-1

v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.

DATE: April 14, 2015

ORDER FOR THE AGENCY TO SHOW CAUSE

As set forth in the affirmed Opinion of the U.S. Court of Appeals for the
Federal Circuit, this matter was remanded to the Board to determine whether the
appellants disclosure qualifies for whistleblower protection.

To establish the

affirmative defense of retaliation for whistleblowing, the appellant must show by

a preponderance of the evidence that he made a protected disclosure under
5 U.S.C. 2302(b)(8), i.e., a disclosure of information that was reasonably
believed

to

evidence

violation

of

law,

rule,

or

regulation,

gross

mismanagement, gross waste of funds, abuse of authority, or a substantial and

specific danger to public health or safety; and the disclosure was a contributing
factor in the agencys personnel action. Shaw v. Department of the Air Force, 80
M.S.P.R. 98, 113 (1998), citing Scott v. Department of Justice, 69 M.S.P.R. 211,
236 (1995), aff'd, 99 F.3d 1160 (Fed. Cir. 1996) (Table). If he makes such a
showing, the agency must prove by clear and convincing evidence that it would
have removed the appellant even absent the disclosure.
The record to date, inclusive of the hearing testimony, reflects that the
appellant made a protected disclosure when he disclosed the contents of the text

2
message at issue on or about July 29, 2003. Further, the record reflects that the
sole charge and specification before the Board center on the agencys assertion
that the appellant made an unauthorized disclosure of this same information as set
forth in the underlying initial decision. The testimony of witnesses before the
Board, the charge, and the specification reflect that this same disclosure was the
basis for the appellants removal. See Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999). In reviewing the record to date inclusive
of the hearing testimony presented by the agency, it is unclear how the agency
would meet the first two factors under Carr, and a continuation of the hearing
does not appear to be necessary. Id. Accordingly, the agency is ordered to show
cause why I should not find that the appellant has proven his affirmative defense
of whistleblowing as set forth above based on the record to date.
The agencys response on this matter shall be received in this office within
14 calendar days of the date of this Order. The appellant may file a response
within this same timeframe, and the record will close on the date the submissions
are due as specified above. Notwithstanding the close of the record however,
pursuant to 5 C.F.R. 1201.58(c), a party may respond to new evidence or
argument submitted by the other party just before the close of the record; any
such response to new evidence or argument submitted by the other party just
before the close of the record must be received in this office within 10 calendar
days of the date of this close of record date specified above or shall be deemed
waived.

FOR THE BOARD:

______________________________
Franklin M. Kang
Administrative Judge

CERTIFICATE OF SERVICE
I certify that the attached Document(s) was (were) sent as indicated this
day to each of the following:
Appellant
Electronic Mail

Robert J. MacLean

Appellant Representatives
Fax

Lawrence A. Berger, Esq.

Mahon and Berger
21 Glen Street, Suite D
Glen Cove, NY 11542

Fax

Thad M. Guyer, Esq.

116 Mistletoe Street
Medford, OR 97501

Fax

Thomas Devine, Esq.

Government Accountability Project
1612 K Street, NW, Suite 1100
Washington, DC 20006
Agency Representative

Electronic Mail

April 14, 2015

(Date)

Eileen Dizon Calaguas, Esq.

Department of Homeland Security
Transportation Security Administration
Office of Chief Counsel
450 Golden Gate Avenue, Suite 1-5246
P.O. Box 36018
San Francisco, CA 94102

Pamela Paragas
Paralegal Specialist