2011-3231

United States Court of Appeals for the Federal Circuit

ROBERT J. MACLEAN, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.

Petition for Review of the Merit Systems Protection Board in Case No. SF0752060611-1-2

FURTHER SUPPLEMENTAL AUTHORITY AND CORRECTION OF ORAL ARGUMENT CITATION

Agency counsel's January 7, 2013 supplemental authority filing referenced a Merit Systems Protection Board decision, Edwards v. Department of Homeland Sec., 110 M.S.P.R. 243 (2008), to conclude that the Board's 2011 consideration of 5 U.S.C. 2302(b)(10) in this proceeding was erroneous because jurisdiction in 49 U.S.C. 40122(g)(2)(A) only references the whistleblowing prohibited personnel practice.

While that conclusion is true for subparagraph (A), 49 U.S.C. 40122(g)(2)(H) provides additional, independent jurisdiction under 5 USC 7701. Section 7701 (c)(2)(B) permits Board reversal of a personnel action "based on any prohibited personnel practice described in section 2302(b) of this title...." At oral argument, Judge Wallach requested references to Mr. MacLean being warned of possible retaliation if he acted further to challenge cancelation of Air Marshal coverage on long distance flights targeted by the terrorists . Due to an ear infection, counsel erroneously thought the request was for all conversations between Mr. MacLean and his supervisor Mr. Schoffield, for which citations were provided during rebuttal. The audio recording revealed this mistake. The proper reference for the warning is A212-13. The transcript text is as follows: "And I called the Oakland Field Office. And that's when I spoke to a Special Agent about I don't know if I I didn't immediately speak to a Special Agent. I probably spoke to a receptionist first, and I said, 'I'd like to speak to a criminal investigator.' "I spoke to him. I told him what's going on. He said he was very aware of all the problems at the Air Marshals. He said, he goes, 'I fly, and it's pretty obvious who you guys are. Some people like to play who's the Air Marshal on their flight.' He was kind of making a big joke out of it. "And he's just and he I said, 'Well, what what could be done here? Can there' "And he goes, 'Uh, this is this is there's nothing that could be done. Just just walk away from it, don't don't bother. You know, you got a lot of years left in your career.' I think we had a discussion." There was no related examination of this testimony.

Respectfully submitted,

Lawrence A. Berger General Counsel Federal Law Enforcement Officers Association MAHON & BERGER 70 Glen Street, Suite 280 Glen Cove, NY 11542 (516)671-2688 Telephone: 516-671-2688 Facsimile: 516-671-1148 Email: FLEOAatty@aol.com

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Thomas Devine Legal Director Government Accountability Project 1612 K Street, NW, #1100 Washington, DC 20006 Telephone: 202-457-0034, ext. 124 Facsimile: 202-457-0059 tomd@whistleblower.org

CERTIFICATE OF SERVICE I hereby certify under penalty of perjury that on this 7 day of January, 2013,1 caused to be sent by first class mail, and electronic mail, a copy of the foregoing "FURTHER SUPPLEMENTAL AUTHORITY AND CORRECTION OF ORAL ARGUMENT CITATION" addressed to: Michael P. Goodman U.S. Department of Justice Civil Division PO Box 480 Ben Franklin Station Washington DC 20044 Michael.Goodman@usdoj.gov

Thomas Devine