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STATEMENT OF RELATED CASES This case has not previously been before this Court. Counsel is unaware of any appeal in or from the same agency decision that was before this or any other appellate court. Counsel also is unaware of any cases pending in this or any other court that will be directly affected by this Court’s decision in the pending appeal. xi
JURISDICTIONAL STATEMENT The Merit Systems Protection Board (“MSPB” or “Board”) had jurisdiction for Petitioner MacLean’s Individual Right of Action and removal action appeals pursuant to 5 USC §§1221 and 2302. This Court has jurisdiction to review the MSPB’s final decision pursuant to 5 USC §7703. The MSPB decision appealed from is a final decision resolving all issues in the case, dated July 25, 2011. Appendix (“A”)1-26. This appeal was timely filed on March 9, 2012. STATEMENT OF THE ISSUES 1. Can MacLean be terminated for an unauthorized, bad faith disclosure of Sensitive Security Information (“SSI”), when there was widespread confusion among Agency experts whether restrictions applied; the context was not discussed in training or other written notice, and the information did not have restrictive markings or other controls required by agency regulation? 2. Can the Board uphold a termination for misconduct not included in Agency charges? 3. Did the Board have substantial evidence to uphold termination based on intent, when it neither followed its own standards for assessing MacLean’s testimony, nor made credibility determination for the Agency’s only witness? 1
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Page 3 and 4: TABLE OF CONTENTS ii Page CERTIFICA
Page 5 and 6: CONCLUSION ........................
Page 7 and 8: Coleman v. Dep't of the Treasury, 8
Page 9 and 10: Parsons v. Dep’t of Air Force, 70
Page 11: 2004 Congressional Research Service
Page 15 and 16: 8. Did the Board err by failing to
Page 17 and 18: ief with the Board in support of Ma
Page 19 and 20: He immediately called other agents
Page 21 and 22: 12, 202-03. That was consistent wit
Page 23 and 24: MacLean’s concerns were well-take
Page 25 and 26: “disgruntled,” ‘malicious,”
Page 27 and 28: investigation, . . . [and] reportin
Page 29 and 30: The ICE/OPR affidavit is the only i
Page 31 and 32: was carried out in less than a week
Page 33 and 34: could not remember if he had any im
Page 35 and 36: contradicted himself repeatedly, an
Page 37 and 38: Spithaler v. Office of Pers. Mgmt.,
Page 39 and 40: This regulation did not take effect
Page 41 and 42: of agency action must limit itself
Page 43 and 44: The Ninth circuit’s MacLean decis
Page 45 and 46: Because MacLean was free to steer b
Page 47 and 48: The AJ supported this judgment with
Page 49 and 50: Isolated inconsistencies cannot sup
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Page 53 and 54: II. TERMINATION DOES NOT SERVE THE
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Nor was Terreri presented as eviden
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Senatorial Campaign Comm., 454 U.S.
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protected is by voluntarily submitt
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Statutory Protection of Whistleblow
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Board did not have the authority to
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suggested that SSI information of g
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United States Court of Appeals for the Federal Circuit

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