United States Court of Appeals for the Federal Circuit

of Health and Human Services, 7 M.S.P.R. 487, 490 (1981) All of those factors are
relevant here. Indeed, the investigation was sought immediately.
Investigations opened in retaliation for protected activity can be prohibited
personnel practices. In Geyer v. Dep’t of Justice, BN-1221-92-0310-B-1, as
summarized in 116 F.3d 1497, 2 (Fed. Cir. 1997), the Board and Federal Circuit
reviewed an employee’s challenge that an investigation was pretextual to provide
the basis for another action, while rejecting the claim on its merits. See also Russell
v. Department of Justice, 76 M.S.P.R. 317, 324-25 (1997); Johnson v. Department
of Justice, 104 M.S.P.R. 624, 631 (2007)
Mr. Quinn officially had requested an ICE/OPR investigation of MacLean
directly, explicitly for his FLEOA activities with the unabashed goal of removal.
His headquarters PCU team investigated MacLean. The agency sought and
obtained an investigation specifically for MacLean’s 2004 appearance on NBC
Nightly News, which he did as part of FLEOA advocacy. Almost immediately
after, an investigation was opened that led to termination, albeit on the new SSI
charges that MacLean disclosed when asked. Quinn’s same unit controlled action
on the ICE/OPR investigative findings. Neither the AJ nor the Board considered
any of this analysis, which was in the record and fully briefed.
The AJ and Board considered retaliation, but only with respect to immaterial
portions of the record. The AJ volunteered that Donzanti was a FLEOA member,
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