United States Court of Appeals for the Federal Circuit

First Amendment and 5 USC § 2302 (b)(10). Nor did the Board consider that to
attack FLEOA, the FAMS Director successfully obtained an investigation into
MacLean’s activities that identified his disclosure of the text message, and
subsequent termination.
Finally, the Board erroneously created an exception to un-contradicted
statutory language, repeated legislative history, and prior case law that agency
regulations cannot cancel statutory free speech rights for whistleblowers. Without
cited basis in law, it created an arbitrary distinction that congressionally-mandated
regulations can override rights in 5 USC § 2302 (b)(8), while congressionally
authorized regulations cannot. Erroneously, it also failed to consider that
provision’s requirement that any restriction on disclosure must be “specific.”
ARGUMENT
The standard of review, 5 U.S.C. §7703(c), is that this Court must hold
unlawful decisions which are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;" or “unsupported by substantial evidence.”
Legal questions are reviewed de novo. Welshans v. U.S. Postal Serv., 550 F.3d
1100, 1102 (Fed. Cir. 2008); Forest v. Merit Systems Protection Board, 47 F.3d
409, 410 (Fed. Cir. 1995)
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