United States Court of Appeals for the Federal Circuit

More documents

Recommendations

Info

actions in fact corrected mistakes that would have left the public unprotected. Empirically, he furthered the government’s stated mission of aviation security. The underlying principle to assess “efficiency of the service” should not be maintaining false appearances that government is operating effectively. Rather, the Code of Ethics should be the guiding principle. The first canon in the Code of Ethics for Government Service, PL 96-303, 94 Stat. 855 (July 3, 1980) and 5 CFR Part 2635, required by law to be displayed in every government office, instructs: “I. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government Department.” The Board did not consider the Code’s relevance for personnel actions. This Court should establish whether it is, and resolve a fundamental clash over the merit system’s priorities. Members of Congress thanked MacLean, while TSA fired him for the same action. This Court should establish whether it serves government efficiency more to shield a false appearance that it is providing service, compared to correcting a mistake so government actually carries out its stated mission. It should choose whether risks from learning of a government breakdown outweigh benefits from correcting it prior to adverse consequences. The Code is on the wall of every government office. If its priorities have no greater significance than wall paper, government employees should know not to take it seriously as legally 46
elevant for actions that could cause embarrassment and a loss of public confidence by successfully challenging agency misconduct. III. THE AGENCY ENGAGED IN A PROHIBITED PERSONNEL PRACTICE BY INVESTIGATING AND TERMINATING MACLEAN FOR BEING A FLEOA LEADER. Throughout this proceeding, MacLean argued that he was harassed, placed under investigation and terminated in retaliation for helping to found, lead and serve as a public spokesman for FLEOA. The issue was accepted for consideration under 5 USC §2302(b)(10), as well as the First Amendment. The latter established jurisdiction under 5 USC §2302(b)(11) as well. 11 The Board has not adequately addressed it, and the record is sufficient to warrant reversal rather than remand. A. MacLean’s FLEOA advocacy was protected. It is undisputed that MacLean’s FLEOA activities were protected, and that he was extremely active for FLEOA, protesting alleged agency mismanagement and abuse of authority that endangered the flying public and FAMS. As discussed above, he protested to agency officials, Congress, the media and virtually any audience that could make a difference. There are no charges that he made unauthorized disclosures during any FLEOA advocacy. Although overlooked by the Board and AJ, MacLean also has argued throughout the proceeding that his 11 MacLean does not contest the Board’s rejection, A20-21, of his attempt also to challenge retaliation because of an NBC Nightly News appearance for FLEOA as a Whistleblower Protection Act violation as well. 47
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 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: effective civil service.” WPA §2
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
Page 86 and 87: A11
Page 88 and 89: A13
Page 90 and 91: A15
Page 92 and 93: A17
Page 94 and 95: A19
Page 96 and 97: A21
Page 98 and 99: A23
Page 100 and 101: A25
Page 102 and 103: A33
Page 104 and 105: A35
Page 106 and 107: A37
Page 108 and 109:
A39
Page 110 and 111:
A41
Page 112 and 113:
A43
Page 114 and 115:
A45
Page 116 and 117:
A47
Page 118 and 119:
A49
Page 120 and 121:
A51
Page 122 and 123:
A53
Page 124 and 125:
A55
Page 126 and 127:
A57
Page 128 and 129:
A59
Page 130 and 131:
A61
Page 132 and 133:
A63
Page 134 and 135:
A65
Page 136 and 137:
A67
Page 138 and 139:
A69
Page 140 and 141:
A71
Page 142 and 143:
United States Court of Appeals for
show all

United States Court of Appeals for the Federal Circuit

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?