United States Court of Appeals for the Federal Circuit

B. MacLean was not on actual or inquiry notice of the applicability of
the SSI regulations at 49 CFR §1520.7(j).
The Final Board Decision identified for the first time that §1520.7(j) was
controlling to judge MacLean’s disclosure. No other pre-determined standard is
referenced. The record for the AJ’s decision is barren of any reference to
§1520.7(j) and its SSI definition. Separate from due process, there is no evidence
that when he made the July 29, 2003 disclosure, MacLean had minimally adequate
notice or was subjectively aware that the text disclosed by him violated
§1520.7(j). The record contains no reference that it had been disseminated to
MacLean or other FAMs, he had read it or was otherwise aware of it.
Lack of notice is significant, because a policy must be known to the
employee in order to be liable for its violation. Standing substantive policies must
be properly and expeditiously communicated before an agency may impose
liability. See e.g. Keeffe v. Library of Congress, 777 F.2d 1573 (D. C. Cir. 1985)
Whether MacLean should have been aware of the applicable Agency rule,
§1520.7 (j), depends on whether the Agency took reasonable steps to notify him
of it. An Agency may prove charges only by establishing that proper instructions
or standing policies were actually given to an employee, and that the employee
failed to follow them regardless of intent. Hamilton v. U.S.P.S., 71 MSPR 547,
556 (1996) The record is barren regarding such notice.
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