Maclean v. Dep't of Homeland Sec.

• Citation: 714 F.3d 1301
• Decision Date: 30 August 2013
• Docket Number: No. 2011–3231.,2011–3231.
• Parties: Robert J. MacLEAN, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

714 F.3d 1301

Robert J. MacLEAN, Petitioner,

v.DEPARTMENT OF HOMELAND SECURITY, Respondent.

No. 2011–3231.

United States Court of Appeals,Federal Circuit.

April 26, 2013.

Rehearing and Rehearing En Banc Aug. 30, 2013.^*

Lawrence Berger, Mahon & Burger, of Glen Cove, NY, argued for petitioner. Of counsel on the brief was Thomas M. Devine, Government Accountability Project, of Washington, DC.

Michael P. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director.

Douglas Hartnett, Elitok & Hartnett at Law, P.L.L.C., of Washington, DC, for amici curiae Elijah E. Cummings, et al.

David B. Nolan, Law Offices of David B. Nolan, Alexandria, Virginia for amicus curiae Joseph P. Carson.

Before PROST, MOORE, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge MOORE. Concurring opinion filed by Circuit Judge WALLACH.

MOORE, Circuit Judge.

Robert J. MacLean petitions for review of a final decision of the Merit Systems Protection Board (Board), which sustained the Transportation Security Administration's (Agency's) removal of Mr. MacLean from the position of Federal Air Marshal (Marshal). See MacLean v. Dep't of Homeland Sec., 116 M.S.P.R. 562 (2011)( MacLean II ). Because the Board incorrectly interpreted the Whistleblower Protection Act (WPA), we vacate and remand.

Background

Mr. MacLean became a Marshal in 2001. In July 2003, all Marshals received a briefing from the Agency that there was a “ ‘potential plot’ to hijack U.S. Airliners.” MacLean II, 116 M.S.P.R. at 564. Soon after that briefing, however, the Agency sent an unencrypted text message to the Marshals' cell phones cancelling all missions on flights from Las Vegas until early August. After receiving this directive, Mr. MacLean became concerned that “suspension of overnight missions during a hijacking alert created a danger to the flying public.” Id. He complained to his supervisor and to the Office of Inspector General, but they responded that nothing could be done. J.A. 212–13. Dissatisfied, Mr. MacLean told an MSNBC reporter about the directive so as to “create a controversy resulting in [its] rescission.” MacLean II, 116 M.S.P.R. at 565. MSNBC published an article criticizing the directive, and the Agency withdrew it after several members of Congress joined in the criticism.

In 2004, Mr. MacLean appeared on NBC Nightly News in disguise to criticize the Agency dress code, which he believed allowed Marshals to be easily identified. However, someone from the Agency recognized his voice. During the Agency's subsequent investigation, Mr. MacLean admitted that he revealed the cancellation directive to an MSNBC reporter in 2003. Eventually, Mr. MacLean was removed from his position because his contact with the MSNBC reporter constituted an unauthorized disclosure of sensitive security information (SSI). Although the Agency had not initially labeled the text message as SSI when it was sent, it subsequently issued an order stating that its content was SSI.

Mr. MacLean challenged the SSI order in the Ninth Circuit as a violation of the Agency's own regulations and as an impermissible retroactive action, but the court rejected Mr. MacLean's challenges. MacLean v. Dep't of Homeland Sec., 543 F.3d 1145, 1150–52 (9th Cir.2008). It held that substantial evidence supported designating the text message as SSI under the applicable regulations, id. at 1150, and that the Agency did not engage in retroactive action because it “applied regulations ... in force in 2003” to determine that the text message was SSI, id. at 1152.

Mr. MacLean challenged his removal before the Board, arguing that his disclosure of the text message was protected whistleblowing activity. After an interlocutory appeal from the Administrative Judge (AJ), the full Board determined that Mr. MacLean's disclosure fell outside the WPA because it was “specifically prohibited by law.” 5 U.S.C. § 2302(b)(8)(A) (2008). The Board reasoned that the regulation prohibiting disclosure of SSI, upon which the Agency relied when it removed Mr. MacLean, had the force of law. MacLean v. Dep't of Homeland Sec., 112 M.S.P.R. 4, 12–18 (2009)( MacLean I ).

The AJ then upheld Mr. MacLean's removal and the Board affirmed in MacLean II, the decision now on appeal. Reconsidering MacLean I, the Board explained that a regulation is not a “law” within the meaning of the WPA. Instead, the Board held that the disclosure of the text message could not qualify for WPA protection because it was directly prohibited by a statute, the Aviation and Transportation Security Act (ATSA). MacLean II, 116 M.S.P.R. at 570–71.

The Board also determined that the AJ applied the correct regulation in upholding the Agency's removal of Mr. MacLean, and that the penalty of removal was reasonable. Moreover, the Board upheld the AJ's finding that the Agency did not terminate Mr. MacLean in retaliation for his activities on behalf of the Federal Law Enforcement Officers Association (FLEOA) because the unauthorized disclosure of SSI was a non-retaliatory reason for removal. Therefore, the Board sustained the removal.

This appeal followed. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

Discussion

We must affirm the Board's decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2012). We review the Board's legal determinations de novo. Welshans v. U.S. Postal Serv., 550 F.3d 1100, 1102 (Fed.Cir.2008).

I. Application of Agency Regulations to Mr. MacLean's Removal

The Board explained that, “[u]nder the regulations in effect in July 2003, information relating to the deployment of [Marshals] was included within the definition of SSI,” and concluded that, as a result, Mr. MacLean's communication with a reporter constituted an unauthorized disclosure. MacLean II, 116 M.S.P.R. at 569. Mr. MacLean argues, however, that the Board erred by upholding his removal because he was not charged under the right regulation. He explains that the regulation quoted in the initial charge, 49 C.F.R. § 1520.5(b)(8)(ii), was not in force in 2003 and only became codified in 2005. Mr. MacLean contends that the Board wrongly concluded that the regulation it ultimately relied on to uphold his removal, 49 C.F.R. § 1520.7(j), which was in force in 2003, is the same as the 2005 regulation. Mr. MacLean argues that the Board violated the rule of SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943), because the Board affirmed his removal on grounds different from those under which he was initially charged by the deciding official.

Mr. MacLean also maintains that, although the Ninth Circuit upheld the Agency's eventual designation of the text message as SSI, his removal violated his due process rights because the message was not labeled SSI when it was sent. He argues that the termination was improper because he did not know that he was violating any Agency rules by revealing the content of the text message. Mr. MacLean admits that he signed a nondisclosure agreement as a condition of his employment, which states that Marshals “may be removed” for “[u]nauthorized release of security-sensitive or classified information.” MacLean II, 116 M.S.P.R. at 580. He argues, however, that he believed that the message was not SSI and that, in any event, he was protected as a whistleblower. Repeating the argument rejected by the Board, Mr. MacLean thus insists that he tried in good faith to proceed within the law.

We do not find Mr. MacLean's arguments challenging the Agency's charge to be persuasive. The regulation that the Board ultimately relied upon to uphold Mr. MacLean's removal, 49 C.F.R. § 1520.7(j) (2002), is no different from the regulation under which he was initially charged, 49 C.F.R. § 1520.5(b)(8)(ii) (2005). The earlier regulation bars disclosing “[s]pecific details of aviation security measures,” including “information concerning specific numbers of [Marshals], deployments or missions,” while the latter prohibits revealing “specific details of aviation ... security measures” and “[i]nformation concerning deployments.” In fact, the regulation's history shows that § 1520.5(b)(8)(ii) is simply a recodified version § 1520.7(j). See J.A. 36. Because the Agency removed Mr. MacLean for revealing SSI, and the Board affirmed the termination for that same reason, the Board did not violate the Chenery doctrine.

We likewise reject Mr. MacLean's due process and “good faith” arguments. Both the applicable regulation and the nondisclosure agreement that Mr. MacLean signed put him on notice that revealing information concerning coverage of flights by Marshals could lead to termination. Thus, the Agency did not violate due process even though it formally designated the text message as SSI only after it was sent. Furthermore, we agree with the government that, because the regulation prohibiting disclosure of SSI does not include an intent element, Mr. MacLean cannot be exonerated by his subjective belief that the content of the text message was not SSI or that he was protected as a whistleblower.

II. Reasonableness of Mr. MacLean's Removal

Mr. MacLean argues that the Board failed to adequately analyze the factors listed in Douglas v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280, 305–06 (1981), for possible mitigation of the penalty of removal. Mr. MacLean contends that the Board did not take into account the fact that he was a one-time offender and otherwise had an unblemished record. Mr. MacLean also argues that Douglas's “comparative discipline” factor did not weigh in favor of removal because other...