4 January 2010. The original redacted document has been removed from the Merit Systems Protection Board website. Below is a listing which describes the case:

31 December 2009

The USA Merit Systems Protection Board published an online Opinion and Order which involved a TSA employee. A footnote states:

*The original unexpurgated version of this Opinion and Order contains Sensitive Security Information (SSI) protected by 49 C.F.R. Parts 15 and 1520. Per agreement between the Merit Systems Protection Board and the Transportation Security Administration (TSA), the TSA has redacted all SSI protected by 49 C.F.R. Parts 15 and 1520 from this version so that it can be made available to the public.

The SSI redactions were made in an insecure manner and could be easily removed, in this case by using the Adobe add-on PitStop.

The document with redactions lifted and SSI highlighted:

http://cryptome.org/tsa-ssi-02.pdf

The original redacted document:

http://cryptome.org/tsa-ssi-no.pdf

Source of the original redacted document:

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=415916&version=416870&application=ACROBAT [now dead link]

Added 4 January 2010

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=415943&version=416897&application=HTML

U.S. Merit Systems Protection Board

Case Report for May 22, 2009

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.

BOARD DECISIONS

Appellant: Stanley J. Miller
Agency: Department of Homeland Security
Decision Number: 2009 MSPB 75 [now dead link]
Docket Number: DC-1221-08-0274-W-1
Issuance Date: May 4, 2009
Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act

- Protected Disclosure – Substantial and Specific Danger to Public Safety

The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal. As a Transportation Security Specialist with the Transportation Security Administration, the appellant is tasked with covert testing of baggage and passenger security systems at U.S. airports and with overseeing a team that conducts testing that involves attempts to pass simulated bombs and bags tainted with explosive contaminants through screening. He claimed that the agency proposed to suspend him for 14 days and removed some of his team leader duties in retaliation for making protected whistleblowing disclosures. Specifically, he alleged that these actions were taken because he criticized changes in standard operating procedures (SOPs) that he believed could have catastrophic results by making it easier for an explosive device to be placed on board an aircraft.

The administrative judge (AJ) determined that the appellant established jurisdiction by making nonfrivolous allegations that he disclosed information that he reasonably believed evidenced a substantial and specific danger to public health or safety, and that the disclosures were a contributing factor in the personnel actions at issue. The AJ further found, however, that the appellant did not prove by preponderant evidence that he made protected disclosures, because he did not show he had a reasonable belief that implementation of the new SOPs would pose a substantial and specific danger to public health or safety. The AJ found in this regard that the appellant did not have the education, training, or expertise to support his claims, and did not provide objective evidence or data that the proposed SOPs presented a danger to the public.

Holdings: The Board vacated the initial decision, finding that the appellant had made protected disclosures, and remanded the appeal for further adjudication:

1. The appellant proved by preponderant evidence that he disclosed information that he reasonably believed evidenced a substantial and specific danger to public health and safety.

a. Whether one has a reasonable belief is determined by an objective test: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the matters disclosed show one of the categories of wrongdoing set out in the statute.

b. Disclosures regarding danger to the public must be both substantial and specific to be protected. Factors to be considered include the likelihood of harm, when the alleged harm may occur, and the potential consequences of the harm.

c. Because the AJ’s findings were not based on the witnesses’ demeanor, with one exception that does not make a material difference, the Board may make its own factual judgments.

d. The AJ’s findings that the appellant’s claims were not credible because they were based on his work experience rather than particular education or training with explosives or related technology, and because of the lack of objective evidence supporting his assertions that Explosives Detection Test (EDT) machines have a 10% failure rate, are inconsistent with the applicable legal standard—that the reasonableness of an individual’s belief is based on facts known to or readily ascertainable by him. The appellant’s 4 years of experience in conducting tests using EDT machines, which was the basis for his conclusion about a 10% failure rate, is more than sufficient to support a reasonable belief in the fallibility of the machines.

e. It was also error to judge the reasonableness of the appellant’s beliefs by the opinion of a chemical engineer with extensive experience working with ETDs, because the appellant was not required to prove the truth of his assertion regarding a safety issue; he was only required to prove that a reasonable person in his position would believe there was such an issue.

f. It was also error to determine that the appellant’s belief was not reasonable simply because management officials involved in the review process did not agree with him. Although the appellant’s disclosures can be seen as a policy disagreement, a disclosure of information reasonably believed to evidence a danger to public safety may be protected even if the alleged danger was created by a policy decision.

g. The 3 factors identified by the Board’s reviewing court have been satisfied. The potential consequences—placement of an explosive device on a commercial airliner—obviously would be catastrophic. The extensive screening measures that have been put in place to prevent such an occurrence are a reflection of how likely and imminent the threat may be.

h. In holding that the appellant reasonably believed that the changes he identified in the agency’s SOPs constituted disclosure of substantial and specific dangers to the public safety, the Board is not required to, and expressly does not, make any finding as to whether the SOP changes actually resulted in any threat to public health or safety.

2. The case must be remanded for determinations on whether the appellant established that his protected disclosures were a contributing factor in the personnel actions at issue and, if so, whether the agency would have taken them in the absence of the disclosures.