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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. 32
Because MacLean was free to steer between lawful and unlawful conduct, Agency rules must provide fair warning what is prohibited for an employee to act accordingly. The Agency’s failure to give MacLean notice of the SSI §1520.7(j) rule bars any effort to hold him liable for its violation. C. When he acted, MacLean had objective basis for a good faith belief that the nondisclosure agreement did not apply. If MacLean believed his actions were permissible under 5 USC §2302(b)(8)(A), the SSI regulation was inapplicable for his 2003 Meeks disclosure. Since FY 1988 an annual appropriations rider has exempted WPA speech from restrictions in nondisclosure policies, forms or agreements. See e.g., Public Law No. 105–277, 112 Stat. 2681–526 (1998), the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, §636; and see generally S. Report 111-101, at 15, n.57 and accompanying text. In 2003 MacLean had no reason to believe his disclosure was unlawful under §2302(b)(8)(A). It was six years before the MSPB shrank WPA boundaries to exclude disclosures like his. Until 2009 only classified material or that whose release Congress itself specifically banned was unprotected. Restrictions in agency regulations were inadequate, as the Board unanimously ruled the only time the issue previously came up. Kent v. General Services Admin., 56 M.S.P.R. 536 (1993) Even if its restrictions on protected speech in MacLean I and II are not 33
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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 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: The Ninth circuit’s MacLean decis
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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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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