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3. There are no material contradictions between MacLean’s testimony and the record. ............................................ 39 4. MacLean both could be frustrated and respond lawfully to FAMS’ mistake. ........................................................... 40 II. TERMINATION DOES NOT SERVE THE EFFICIENCY OF THE SERVICE. .......................................................................................... 41 A. The Douglas penalty factors have not been adequately addressed. ............................................................................................... 41 B. MacLean’s actions promoted the efficiency of the service, and terminating him undermines it. ....................................................... 45 III. THE AGENCY ENGAGED IN A PROHIBITED PERSONNEL PRACTICE BY INVESTIGATING AND TERMINATING MACLEAN FOR BEING A FLEOA LEADER. .................................................................................................... 47 A. MacLean’s FLEOA advocacy was protected. ....................................... 47 B. The Agency opened a retaliatory investigation of and fired MacLean for protected FLEOA activities. ............................................ 48 IV. MACLEAN’S TERMINATION VIOLATED THE WHISTLEBLOWER PROTECTION ACT. .............................................. 51 A. The Board’s interpretation undermines the purpose of the Whistleblower Protection Act. ............................................................... 52 B. The Board’s interpretation cannot coexist with the Act’s legislative history. .................................................................................. 56 C. The Board erroneously restored legislative language that Congress deleted. ................................................................................... 57 D. The Board erroneously added specificity for statutory language, beyond that provided by Congress. ....................................... 58 E. The Board erroneously canceled statutory language requiring restrictions on public disclosure to be “specific”. .................. 59 iii
CONCLUSION ........................................................................................................ 62 ADDENDUM CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS iv
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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
Page 53 and 54: 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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