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CERTIFICATE OF INTEREST Counsel for Petitioner, Robert J. MacLean, certifies the following (use “None” if applicable; use extra sheets if necessary): 1. The full name of every party or amicus represented by me is: ROBERT J. MACLEAN 2. The name of the real party in interest (if the party named in the caption is not the real party in interest) represented by me is: N/A 3. All parent corporations and any publicly held companies that own 10 percent or more of the stock of the party or amicus curiae represented by me are: N/A/ 4. The names of all law firms and the partners or associates that appeared for the party or amicus now represented by me in the trial court or agency or are expected to appear in this court are: Mahon & Berger Lawrence Berger Thomas Devine Government Accountability Project i
TABLE OF CONTENTS ii Page CERTIFICATE OF INTEREST ................................................................................. i TABLE OF AUTHORITIES ..................................................................................... v STATEMENT OF RELATED CASES .................................................................... xi JURISDICTIONAL STATEMENT .......................................................................... 1 STATEMENT OF THE ISSUES............................................................................... 1 STATEMENT OF THE CASE .................................................................................. 4 STATEMENT OF FACTS ........................................................................................ 5 SUMMARY OF ARGUMENT ............................................................................... 21 ARGUMENT ........................................................................................................... 24 I. MACLEAN HAD A GOOD FAITH BELIEF HE WAS ACTING LAWFULLY. .............................................................................. 25 A. The Board erred by sustaining termination based on a charge not levied. ................................................................................... 26 B. MacLean was not on actual or inquiry notice of the applicability of the SSI regulations at 49 CFR §1520.7(j). ................... 32 C. When he acted, MacLean had objective basis for a good faith belief that the nondisclosure agreement did not apply. ................. 33 D. MacLean has testified credibly and in good faith. ................................. 34 1. MacLean’s expressed lack of remorse did not refer to the 2003 Meeks disclosure. ............................................................ 37 2. There is a reasonable distinction between regulations restricting release of specific, controlled information, compared to general, uncontrolled information. ............................ 38
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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 and 12: 2004 Congressional Research Service
Page 13 and 14: JURISDICTIONAL STATEMENT The Merit
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
Page 51 and 52: total abandonment for all long dist
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II. TERMINATION DOES NOT SERVE THE
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to pick the weak link between indiv
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effective civil service.” WPA §2
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elevant for actions that could caus
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of Health and Human Services, 7 M.S
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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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ADDENDUM
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