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first identify the factual questions in dispute; second, summarize all of the evidence on each disputed question of fact; third, state which version he or she believes; and, fourth, explain in detail why the chosen version was more credible than the other version or versions of the event …. [Mandatory factors] include: (1) The witness's opportunity and capacity to observe the event or act in question; (2) the witness's character; (3); any prior inconsistent statement by the witness; (4) a witness's bias, or lack of bias; (5) the contradiction of the witness's version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness's version of events; and (7) the witness's demeanor. Like Spithaler, the Board has applied Hillen consistently, and this Court has used its guidance to assess the record. Haebe, 288 F.3d at 1301 n.30; Redschlag v. Dep’t of the Army, 89 M.S.P.R. 589, 598 (1991), aff’d 32 Fed. Appx. 543 (Fed. Cir. 2002); Grant v. Dep’t of Air Force, 61 M.S.P.R. 370, 370 n.4 (1994), aff’d 53 F.3d 347 (Fed. Cir 1995); Arenz v. Department of the Army, 40 M.S.P.R. 307, 310 (1989), aff’d 976 F.2d 746 (Fed. Cir 1992); Addison v. Dep’t of Treasury, 30 M.S.P.R. 615, 617-18 aff’d 864 F.2d 148 (Fed. Cir. 1987) It is not enough merely to express disbelief. Credibility determinations also must include an explanation for their basis, and address evidence in the record material to a conclusion. Grant, 61 M.S.P.R. at 374-75; Arenz, 40 M.S.P.R. at 310 8 8 These considerations are explained in-depth in contexts where intent and credibility are principal issues. In disability cases credibility determinations must be supported by objective evidence in the record. Cline v. Sullivan, 939 F.2d 560, 565 (8 th Cir. 1991) In asylum determinations, a finding of “evasive” cannot stand when the witness’s testimony is consistent. Castenda-Castillo v. Gonzalez, 464 F.3d 112, 126 (1 st Cir. 2006) 36
Isolated inconsistencies cannot support blanket rejection of a witness’ credibility. Anderson v. Dep’t of Transportation, FAA, 827 F.2d 1564, 1570-71 (Fed. Cir 1987); Craft v. Dep’t of Veterans Affairs, 78 M.S.P.R. 374, 380 (1998) Fact finder must explain and apply inconsistencies to material issues in proceedings. By these standards, none of the Board’s four reasons to reject MacLean’s credibility can withstand scrutiny. 1. MacLean’s expressed lack of remorse did not refer to the 2003 Meeks disclosure. This finding from MacLean’s ICE/OPR affidavit is central to the AJ and Board’s determination, like his deposition testimony that “it did not matter” whether the text message was secret. However, neither statement concerned the 2003 disclosure for which MacLean was charged. The AJ does not, and cannot, have any citation to MacLean expressing that sentiment with respect to his 2003 disclosure. There is none. As discussed above, “lack of remorse” referenced working with Meeks for MacLean’s camouflaged 2004 appearance on NBC’s Nightly News program, in which he challenged agency security breaches. The agency withdrew charges of associated misconduct. Nor should MacLean have remorse, since it was part of an effective FLEOA effort to restore professionalism and eliminate management security breaches. 37
Page 1 and 2: 2011-3231 United States Court of Ap
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 and 44: The Ninth circuit’s MacLean decis
Page 45 and 46: Because MacLean was free to steer b
Page 47: The AJ supported this judgment with
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
Page 75: ADDENDUM
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