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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) 24
Spithaler v. Office of Pers. Mgmt., 1 M.S.P.R. 587, 589 (1980), established standards to apply the record. [A]n initial decision must identify all material issues of fact, summarize the evidence on each such issue sufficiently to disclose the evidentiary basis for the presiding official's findings of fact, set forth those findings clearly and explain how any issues of credibility were resolved and why, describe the application of burdens of proof, and address all material legal issues in a fashion that reveals the presiding official's conclusions of law, legal reasoning and the authorities on which that reasoning rests. While created to review AJ Initial Decisions, this Court long has applied them as persuasive authority. Haebe v. Dep’t of Justice, 288 F.3d 1288, 1301n.31 (Fed Cir. 2002); Arenz v. Dep’t of the Army, 40 M.S.P.R. 307, 310 (1989), aff’d 976 F.2d 746 (Fed. Cir. 1992) I. MACLEAN HAD A GOOD FAITH BELIEF HE WAS ACTING LAWFULLY. The Ninth Circuit’s mandate was that MacLean could contest his termination by “contending that the lack of clarity of the TSA's 2003 ‘sensitive security information’ regulations is evidence MacLean disseminated the text message under a good faith belief the information did not qualify as ‘sensitive security information.’” MacLean, 543 F.3d at 1152 The Board held that MacLean did not make a good faith mistake for two reasons: 1) he signed a corresponding 25
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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 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: contradicted himself repeatedly, an
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
Page 53 and 54: II. TERMINATION DOES NOT SERVE THE
Page 55 and 56: to pick the weak link between indiv
Page 57 and 58: effective civil service.” WPA §2
Page 59 and 60: elevant for actions that could caus
Page 61 and 62: of Health and Human Services, 7 M.S
Page 63 and 64: Nor was Terreri presented as eviden
Page 65 and 66: Senatorial Campaign Comm., 454 U.S.
Page 67 and 68: protected is by voluntarily submitt
Page 69 and 70: Statutory Protection of Whistleblow
Page 71 and 72: Board did not have the authority to
Page 73 and 74: suggested that SSI information of g
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