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I N THE SUPREME COURT OF THE UNI TED STATES

_______________

No. A- _____

DEPARTMENT OF HOMELAND SECURI TY

v.

ROBERT J . MACLEAN

_______________

APPLI CATI ON FOR AN EXTENSI ON OF TI MEWI THI N WHI CH TO FI LE A PETI TI ON FOR A WRI T OF CERTI ORARI TO THE UNI TED STATES COURT OF APPEALS

FOR THE FEDERAL CI RCUI T

_______________

The Sol i ci t or Gener al , on behal f of t he Uni t ed Stat es,

r espect f ul l y r equest s a 30- day extensi on of t i me, t o and

i ncl udi ng December 28, 2013, wi t hi n whi ch t o f i l e a pet i t i on f or

a wr i t of cer t i or ar i t o r evi ew t he j udgment of t he Uni t ed St at es

Cour t of Appeal s f or t he Feder al Ci r cui t i n t hi s case. The

cour t of appeal s ent ered i t s j udgment on August 30, 2013.

Unl ess ext ended, t he t i me wi t hi n whi ch t o f i l e a pet i t i on f or a

wr i t of cer t i or ar i wi l l expi r e on November 28, 2013. The

j ur i sdi ct i on of t hi s Cour t woul d be i nvoked under 28 U. S. C.

1254( 1) . A copy of t he opi ni on of t he cour t of appeal s and t he

or der denyi ng r ehear i ng ar e at t ached.



2

Respondent i s a f ormer f ederal ai r marshal who was r emoved

f or di scl osi ng t o a repor t er t hat no ai r mar shal s woul d be

f l yi ng on cer t ai n f l i ght s or i gi nat i ng i n Las Vegas. App. ,

i nf r a, 2a- 3a. The i nf or mat i on r espondent l eaked had been

desi gnat ed as Sensi t i ve Secur i t y I nf or mat i on ( SSI ) , under r ul es

pr omul gat ed i n r esponse t o a st at ut or y di r ect i ve requi r i ng t he

Tr anspor t at i on Secur i t y Agency ( TSA) t o “prescr i be r egul at i ons

pr ohi bi t i ng t he di scl osur e of i nf or mat i on obt ai ned or devel oped

i n car r yi ng out secur i t y” under cer t ai n st at ut es “i f [ t he TSA]

deci des t hat di scl osi ng t he i nf or mat i on woul d * * * be

det r i ment al t o t he secur i t y of t r anspor t at i on. ” 49 U. S. C.

114( r ) ; see 49 U. S. C. 40119( b) ( 1) ( C) ; see al so 49 C. F. R.

1520. 7( j ) ( 2003) ; MacLean v. Depart ment of Homel and Secur i t y,

543 F. 3d 1145, 1150 ( 9t h Ci r . 2008) .

Respondent chal l enged hi s r emoval bef ore t he Mer i t Syst ems

Pr ot ect i on Boar d ( Boar d) , asser t i ng ( among ot her t hi ngs) t hat

hi s r emoval vi ol at ed t he Whi st l ebl ower Pr ot ect i on Act ( WPA) .

App. , i nf r a, 3a. The WPA gener al l y pr ot ect s f eder al empl oyees

f r om adver se per sonnel act i ons f or di scl osi ng i nf or mat i on when

an empl oyee “r easonabl y bel i eves” t hat t he i nf or mat i on

“evi dences * * * any vi ol at i on of any l aw, r ul e, or

r egul at i on, or * * * gr oss mi smanagement , a gr oss wast e of

f unds, an abuse of aut hor i t y, or a subst ant i al and speci f i c

danger t o publ i c heal t h or saf et y. ” 5 U. S. C. 2302( b) ( 8) . The



3

WPA does not , however , prot ect an empl oyee who makes a

di scl osur e “speci f i cal l y pr ohi bi t ed by l aw. ” I bi d. The Boar d

det er mi ned t hat r espondent ’ s di scl osur e her e f el l wi t hi n t hat

except i on t o t he WPA, and i t af f i r med hi s removal . App. , i nf r a,

4a.

The cour t of appeal s vacat ed t he Board’ s deci si on. App. ,

i nf r a, 15a. I n t he cour t of appeal s’ vi ew, pet i t i oner ’ s

di scl osur e was not “speci f i cal l y pr ohi bi t ed by l aw” wi t hi n t he

meani ng of t he WPA. I d. at 9a- 15a. The cour t r ecogni zed t hat

t he i nf or mat i on di scl osed by pet i t i oner had been desi gnat ed as

SSI , and t hat Congr ess had di r ect ed t he TSA “t o pr escr i be [SSI ]

r egul at i ons pur suant t o speci f i c cr i t er i a ( i . e. , onl y

i nf or mat i on t hat woul d be det r i ment al t o t r anspor t at i on

saf et y) . ” I d. at 13a. But t he cour t never t hel ess concl uded

t hat t he st at ut or y di r ect i ve cont ai ned “i nsuf f i ci ent

speci f i ci t y, ” i d. at 12a, t o enabl e agenci es t o t ake adver se

personnel act i ons agai nst an empl oyee who “r easonabl y bel i eves”

t hat di scl osi ng i nf or mat i on t he TSA has desi gnat ed as

conf i dent i al wi l l ser ve one of t he pur poses l i st ed i n t he WPA,

see 5 U. S. C. 2302( b) ( 8) . The cour t acknowl edged t hat t hi s was

“a ver y cl ose case. ” App. , i nf r a, 13a.

The Sol i ci t or Gener al has not yet deci ded whet her t o f i l e a

pet i t i on f or a wr i t of cer t i or ar i . Addi t i onal t i me i s needed

f or f ur t her consul t at i on wi t h t he Depar t ment of Homel and



4

Secur i t y, other agenci es, and other component s of t he Depart ment

of J ust i ce and, i f cer t i or ar i i s aut hor i zed, t o pr epar e and

pr i nt t he pet i t i on.

Respect f ul l y submi t t ed.

DONALD B. VERRI LLI , J R.Sol i ci t or Gener al

Counsel of Recor d

NOVEMBER 2013



APPENDI X



United States Court of Appeals

for the Federal Circuit ______________________

ROBERT J. MACLEAN, Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY, Respondent.

______________________

2011-3231

______________________

Petition for review of the Merit Systems ProtectionBoard in No. SF0752060611-I-2.

______________________

Decided: April 26, 2013

______________________

L AWRENCE BERGER, Mahon & Burger, of Glen Cove,

New York, 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 Depart-

ment of Justice, of Washington, DC, argued for respond-ent. With him on the brief were STUART F. DELERY ,

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MACLEAN v. DHS 2

Acting Assistant Attorney General, JEANNE E. D AVIDSON,

Director, and TODD M. HUGHES, Deputy Director.

DOUGLAS H ARTNETT, Elitok & Hartnett at Law, P.

L.L.C., of Washington, DC, for amici curiae Elijah E.

Cummings, et al.

D AVID B. NOLAN, Law Offices of David B. Nolan, Alex-

andria, Virginia for amicus curiae Joseph P. Carson. ______________________

Before PROST, MOORE, and W ALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge MOORE.

Concurring opinion filed by Circuit Judge W ALLACH.

MOORE, Circuit Judge.

Robert J. MacLean petitions for review of a final deci-sion of the Merit Systems Protection Board (Board), whichsustained the Transportation Security Administration’s(Agency’s) removal of Mr. MacLean from the position ofFederal 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 Whistle-blower Protection Act (WPA), we vacate and remand.

B ACKGROUND

Mr. MacLean became a Marshal in 2001. In July

2003, all Marshals received a briefing from the Agencythat there was a “‘potential plot’ to hijack U.S. Airliners.”MacLean II , 116 M.S.P.R. at 564. Soon after that brief-ing, however, the Agency sent an unencrypted text mes-

sage to the Marshals’ cell phones cancelling all missionson flights from Las Vegas until early August. After

receiving this directive, Mr. MacLean became concernedthat “suspension of overnight missions during a hijackingalert created a danger to the flying public.” Id. He com-plained to his supervisor and to the Office of Inspector

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MACLEAN v. DHS 3

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 controversyresulting in [its] rescission.” MacLean II , 116 M.S.P.R. at

565. MSNBC published an article criticizing the di-rective, and the Agency withdrew it after several mem-

bers of Congress joined in the criticism.

In 2004, Mr. MacLean appeared on NBC Nightly

News in disguise to criticize the Agency dress code, whichhe believed allowed Marshals to be easily identified.

However, someone from the Agency recognized his voice.During the Agency’s subsequent investigation, Mr. Mac-

Lean admitted that he revealed the cancellation directiveto an MSNBC reporter in 2003. Eventually, Mr. MacLean

was removed from his position because his contact withthe MSNBC reporter constituted an unauthorized disclo-

sure of sensitive security information (SSI). Although the Agency had not initially labeled the text message as SSIwhen 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 andas an impermissible retroactive action, but the court

rejected Mr. MacLean’s challenges. MacLean v. Dep’t ofHomeland Sec., 543 F.3d 1145, 1150–52 (9th Cir. 2008). It held that substantial evidence supported designatingthe text message as SSI under the applicable regulations,

id. at 1150, and that the Agency did not engage in retro-active 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 theBoard, arguing that his disclosure of the text message

was protected whistleblowing activity. After an interlocu-tory appeal from the Administrative Judge (AJ), the fullBoard determined that Mr. MacLean’s disclosure fell

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MACLEAN v. DHS 4

outside the WPA because it was “specifically prohibited bylaw.” 5 U.S.C. § 2302(b)(8)(A) (2008). The Board rea-

soned that the regulation prohibiting disclosure of SSI,upon which the Agency relied when it removed Mr. Mac-

Lean, had the force of law. MacLean v. Dep’t of HomelandSec., 112 M.S.P.R. 4, 12–18 (2009) (MacLean I ).

The AJ then upheld Mr. MacLean’s removal and theBoard affirmed in MacLean II , the decision now on ap-

peal. Reconsidering MacLean I , the Board explained thata regulation is not a “law” within the meaning of the

WPA. Instead, the Board held that the disclosure of thetext message could not qualify for WPA protection be-

cause it was directly prohibited by a statute, the Aviationand Transportation Security Act (ATSA). MacLean II ,

116 M.S.P.R. at 570–71.

The Board also determined that the AJ applied thecorrect regulation in upholding the Agency’s removal of

Mr. MacLean, and that the penalty of removal was rea-sonable. Moreover, the Board upheld the AJ’s findingthat the Agency did not terminate Mr. MacLean in retali-ation for his activities on behalf of the Federal Law En-

forcement Officers Association (FLEOA) because theunauthorized disclosure of SSI was a non-retaliatory

reason for removal. Therefore, the Board sustained theremoval.

This appeal followed. We have jurisdiction under 28U.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 proce-dures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.” 5U.S.C. § 7703(c) (2012). We review the Board’s legal

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MACLEAN v. DHS 5

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’sRemoval

The Board explained that, “[u]nder the regulations in

effect in July 2003, information relating to the deploy-ment of [Marshals] was included within the definition ofSSI,” and concluded that, as a result, Mr. MacLean’scommunication with a reporter constituted an unauthor-

ized disclosure. MacLean II , 116 M.S.P.R. at 569. Mr.MacLean argues, however, that the Board erred by up-

holding his removal because he was not charged under

the right regulation. He explains that the regulationquoted 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 concludedthat 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 arguesthat the Board violated the rule of SEC v. Chenery Corp.,318 U.S. 80, 87 (1943), because the Board affirmed his

removal on grounds different from those under which hewas initially charged by the deciding official.

Mr. MacLean also maintains that, although the NinthCircuit upheld the Agency’s eventual designation of the

text message as SSI, his removal violated his due processrights because the message was not labeled SSI when it

was sent. He argues that the termination was improperbecause he did not know that he was violating any Agencyrules by revealing the content of the text message. Mr.MacLean admits that he signed a nondisclosure agree-

ment as a condition of his employment, which states thatMarshals “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 be-lieved that the message was not SSI and that, in any

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MACLEAN v. DHS 6

event, he was protected as a whistleblower. Repeatingthe argument rejected by the Board, Mr. MacLean thus

insists that he tried in good faith to proceed within thelaw.

We do not find Mr. MacLean’s arguments challengingthe Agency’s charge to be persuasive. The regulation thatthe Board ultimately relied upon to uphold Mr. MacLean’sremoval, 49 C.F.R. § 1520.7(j) (2002), is no different from

the regulation under which he was initially charged, 49C.F.R. § 1520.5(b)(8)(ii) (2005). The earlier regulation

bars disclosing “[s]pecific details of aviation securitymeasures,” including “information concerning specific

numbers of [Marshals], deployments or missions,” whilethe latter prohibits revealing “specific details of aviation

. . . security measures” and “[i]nformation concerningdeployments.” 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. MacLeanfor revealing SSI, and the Board affirmed the terminationfor 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. MacLeansigned put him on notice that revealing informationconcerning coverage of flights by Marshals could lead totermination. Thus, the Agency did not violate due process

even though it formally designated the text message asSSI only after it was sent. Furthermore, we agree with

the government that, because the regulation prohibitingdisclosure of SSI does not include an intent element, Mr.MacLean cannot be exonerated by his subjective beliefthat the content of the text message was not SSI or that

he was protected as a whistleblower.

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MACLEAN v. DHS 7

II. Reasonableness of Mr. MacLean’s Removal

Mr. MacLean argues that the Board failed to ade-quately analyze the factors listed in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981), for possi-

ble mitigation of the penalty of removal. Mr. MacLeancontends that the Board did not take into account the factthat he was a one-time offender and otherwise had anunblemished record. Mr. MacLean also argues that

Douglas’s “comparative discipline” factor did not weigh infavor of removal because other Marshals were not termi-

nated even though they disclosed SSI regarding specificflights. Mr. MacLean contends that the Board ignored the

fact that other Marshals’ disclosures were for personalgain, while his disclosure exposed and led to correcting an

Agency mistake. He thus argues that revealing the textmessage to a reporter served the public interest, and that

his termination undermined the efficiency of the service.

The government counters that the Board did notabuse its discretion when it determined that Mr. Mac-Lean’s termination promoted the efficiency of the service.The government argues that there is no evidence that Mr.

MacLean’s actions made the flying public safer. Thegovernment contends that, because even a possibility that

a Marshal may be onboard is an important deterrent toterrorist activity, Mr. MacLean’s disclosure compromisedflight safety and forced the Agency to reallocate scarceresources to address this new vulnerability. The govern-

ment explains that, although Mr. MacLean was a first-time offender with a clean record, he was properly re-

moved because his disclosure could have had catastrophicconsequences. The government argues that Mr. MacLeandiffers from the Marshals who kept their jobs in spite ofSSI breaches because those Marshals compromised only

individual flights and showed remorse.

We agree with the government. The Board analyzedthe relevant Douglas factors and did not abuse its discre-

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MACLEAN v. DHS 8

tion in concluding that Mr. MacLean’s removal was not adisparate penalty. MacLean II , 116 M.S.P.R. at 576, 580–

81. Unlike other Marshals, Mr. MacLean revealed thatmultiple flights would be unprotected, and we cannot say

that it was unreasonable for the Board to find that Mr.MacLean’s belief that he was doing the right thing was

outweighed by the resulting threat to public safety.Moreover, it was not unreasonable for the Board to de-termine that Mr. MacLean’s conduct “caused the [A]gencyto lose trust in him,” id. at 579, because Mr. MacLean

admitted that he has “no regrets” and “feel[s] no remorsefor going to a credible and responsible media representa-

tive,” id. at 576. Given these circumstances, the Board

did not abuse its discretion by upholding Mr. MacLean’sremoval.

III. Mr. MacLean’s Prohibited Personnel Practice Claim

The Board rejected Mr. MacLean’s argument that the

Agency violated the Civil Service Reform Act by investi-gating him in retaliation for his FLEOA activities.1 Thestatute at issue prohibits individuals in positions ofauthority from discriminating against a government

employee “on the basis of conduct which does not adverse-ly affect the performance of the employee . . . or the per-

1 The government submitted a letter arguing thatthe Board lacked jurisdiction over Mr. MacLean’s prohib-

ited personnel practice claim. The government’s argu-ment is unsupported by the applicable statutes. TheBoard has jurisdiction to entertain prohibited personnelpractice claims under 5 U.S.C. § 7701(c)(2), which states

that “the agency’s decision may not be sustained . . . if theemployee . . . shows that the decision was based on any

prohibited personnel practice described in section 2302(b)

of this title.” Section 7701 applies to Agency employees byvirtue of 49 U.S.C. § 40122(g)(2)(H).

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MACLEAN v. DHS 9

formance of others.” 5 U.S.C. § 2302(b)(10)(A). The Boardconcluded that Mr. MacLean’s prohibited personnel

practice challenge failed because he did not “meet hisburden to establish that the reason articulated by the

[A]gency was pretextual and that the real reason underly-ing that decision was his FLEOA activities.” MacLean II ,

116 M.S.P.R. at 575. Mr. MacLean reasserts his discrim-ination argument on appeal. He contends that the Agen-cy investigated him because of his 2004 appearance onNBC Nightly News, which he made as part of his advoca-

cy on behalf of FLEOA.

We agree with the government that substantial evi-

dence supports the Board’s conclusion that the Agency didnot discriminate against Mr. MacLean on the basis of his

FLEOA activities. Agency Policy Directive ADM 3700“regulate[s] and prohibit[s] [Marshals’] unauthorized

contact with the media,” and record evidence is consistentwith the AJ’s determination that Mr. MacLean wasinitially investigated for his unauthorized media appear-ance, not for his FLEOA activities. J.A. 27. Indeed, it is

undisputed that the Agency began to investigate Mr.MacLean “within days of his unauthorized appearance”

on NBC Nightly News, which was “approximately 22

months after he began organizing and leading the[FLEOA] chapter.” J.A. 55 (quotation marks omitted). Although the Agency ultimately did not pursue the media

appearance charge and focused on the SSI disclosurecharge, the initial investigation does not appear to be

frivolous or pretextual because it was justified by Di-

rective ADM 3700.

IV. Mr. MacLean’s Affirmative Defense Under the WPA

The WPA prohibits individuals in positions of authori-ty from taking a “personnel action” against a government

employee in certain circumstances, particularlybecause of any disclosure of information by anemployee . . . which the employee . . . reasonably

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believes evidences . . . a substantial and specificdanger to public health or safety, if such disclo-

sure is not specifically prohibited by law . . . . 2

5 U.S.C. § 2302(b)(8) (emphasis added). The Board reject-

ed Mr. MacLean’s affirmative defense that his disclosureof the text message was protected whistleblowing activitybecause it determined that the disclosure was “specificallyprohibited by law” within the meaning of the WPA. The

law that the Board relied upon is the ATSA, which states,in relevant part:

Notwithstanding section 552 of title 5 . . . , the

Secretary of Transportation shall prescribe regu-

lations prohibiting disclosure of information ob-tained or developed in ensuring security underthis title if the Secretary of Transportation decides

disclosing the information would . . . be detri-mental to transportation safety.

49 U.S.C. § 40119(b)(1) (2009) (emphases added). Be-cause its conclusion that revealing the content of the text

message was specifically prohibited by the ATSA madefurther WPA inquiry unnecessary, the Board did not

reach the question of whether Mr. MacLean “reasonably

believe[d]” that this information “evidence[d] . . . a sub-stantial and specific danger to public . . . safety.” 5 U.S.C.

§ 2302(b)(8); see MacLean II , 116 M.S.P.R. at 581.

The parties do not dispute that, in order to fall under

the WPA’s “specifically prohibited by law” proviso, thedisclosure must be prohibited by a statute rather than by

a regulation. Thus, the core of the disagreement iswhether the ATSA “specifically prohibit[s]” disclosure ofinformation concerning coverage of flights by Marshals

within the meaning of the WPA.

2 The WPA was recently amended by the Whistle-blower Protection Enhancement Act (WPEA). Neitherparty argues that the WPEA applies to this appeal.

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MACLEAN v. DHS 11

Mr. MacLean and his amici (three members of Con-gress) argue that the Board erroneously concluded that

the ATSA’s mandate to the Secretary of Transportation to“prescribe regulations prohibiting disclosure” of certain

kinds of information is a specific prohibition under theWPA. They contend that the phrase “specifically prohib-

ited by law” in the WPA can only refer to explicit statuto-ry language that identifies specific classes of information.They argue that the ATSA’s “detrimental to transporta-tion safety” language does not establish particular criteria

for withholding information and leaves a great deal ofdiscretion to the Agency, which is inconsistent with the

WPA’s requirement of specificity. They contrast the

ATSA with the Trade Secrets Act, which directly author-izes removal of any federal employee who divulges infor-mation that falls into particular categories. 18 U.S.C. §

1905 (2008); see also Kent v. Gen. Servs. Admin., 56M.S.P.R. 536, 540–46 (1993).

The government counters that Mr. MacLean violateda regulation promulgated pursuant to an express legisla-

tive directive in the ATSA, which made his disclosure“specifically prohibited” by a statute. It thus argues that

Mr. MacLean’s disclosure does not qualify for WPA pro-

tection. The government contends that Mr. MacLean’sreading of the WPA eviscerates laws that provide for any Agency discretion in classifying information as SSI, and

thus disables Congress from directing agencies to passnondisclosure regulations. Lastly, the government argues

that it does not make sense for Congress to order anagency to promulgate nondisclosure regulations and atthe same time prohibit that agency from disciplining anemployee for violating those regulations by providing a

defense under the WPA.

We agree with Mr. MacLean that the ATSA does not

“specifically prohibit” the disclosure at issue in this case.The ATSA’s plain language does not expressly prohibitemployee disclosures, and only empowers the Agency to

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prescribe regulations prohibiting disclosure of SSI “if theSecretary decides disclosing the information would . . . be

detrimental to public safety.” 49 U.S.C. § 40119(b) (em-phasis added). Thus, the ultimate source of prohibition of

Mr. MacLean’s disclosure is not a statute but a regula-tion, which the parties agree cannot be “law” under the

WPA.

Notably, Congress changed the language “specifically

prohibited by law, rule, or regulation” in the statute’sdraft version to simply “specifically prohibited by law.”

Congress did so because it was concerned that the broaderlanguage “would encourage the adoption of internal

procedural regulations against disclosure, and therebyenable an agency to discourage an employee from coming

forward with allegations of wrongdoing.” S. Rep. No. 969,95th Cong., 2d Sess. (1978), reprinted in 1978

U.S.C.C.A.N. 2723, 2743. Congress explained that only “astatute which requires that matters be withheld from thepublic as to leave no discretion on the issue, or . . . whichestablishes particular criteria for withholding or refers to

particular types of matters to be withheld” could qualifyas a sufficiently specific prohibition. Id. In contrast, the

“detrimental to transportation safety” language of the

ATSA does not describe specific matters to be withheld. Itprovides only general criteria for withholding informationand gives some discretion to the Agency to fashion regula-

tions for prohibiting disclosure. Thus, the ATSA does not“specifically prohibit” employee conduct within the mean-

ing of the WPA.

The ATSA’s insufficient specificity becomes even moreapparent when it is contrasted with statutes that havebeen determined to fall under the WPA’s “specificallyprohibited by law” proviso. For example, the Trade

Secrets Act, which the Board in Kent held to qualify as a

specific prohibition, is extremely detailed and comprehen-sive. 56 M.S.P.R. at 543–46. That statute penalizesfederal employees who “divulge[ ] . . . any information

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coming to [them] in the course of [their] employment . . .which information concerns or relates to the trade secrets,

processes, operations, style of work, or apparatus, or tothe identity, confidential statistical data, amount or

source of any income, profits, losses, or expenditures ofany person, firm, partnership, corporation, or association

. . . . ” 18 U.S.C. § 1905. The same is true of § 6013 of theInternal Revenue Code, which the Ninth Circuit in Coonsv. Secretary of the Treasury, 383 F.3d 879, 890–91 (9thCir. 2003), held to fall within the meaning of the WPA’s

“specifically prohibited” language. That statute prohibitsfederal employees from “disclos[ing] any return or return

information obtained by him in any manner in connection

with his service,” 26 U.S.C. § 6013(a)(1), and then goes onto define “return” and “return information” in explicitdetail, mentioning such things as “a taxpayer’s identity,

the nature, source or amount of his income, payments,receipts, deductions, exemptions, credits, assets, overas-

sessments, or tax payments . . . ,” id. § 6013(b)(1), (2).Thus, when Congress seeks to prohibit disclosure ofspecific types of information, it has the ability to draft the

statute accordingly.

Nonetheless, we note that the ATSA’s charge to the

Secretary of Transportation to prescribe regulationspursuant to specific criteria (i.e., only information thatwould be detrimental to transportation safety) makes this

a very close case. Indeed, the ATSA appears to fall in themiddle of the spectrum of statutes flanked at opposite

ends by (a) those that fall squarely under the WPA’s“specifically prohibited by law” proviso, such as the TradeSecrets Act and § 6013 of the Internal Revenue Code, and(b) those in which Congress delegates legislative authority

to an administrative agency without circumscribing theagency’s discretion. Regulations promulgated pursuant to

Congress’s express instructions would qualify as specificlegal prohibitions. In this case, given the clarity of thestatutory language and legislative intent behind the

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WPA’s specificity requirement, the parameters set byCongress are not enough to push the ATSA over that

threshold.

We are similarly unpersuaded by the government’s

argument that a parade of horribles necessarily followsour adoption of Mr. MacLean’s interpretation of the WPA.The government argues that, if Mr. MacLean is allowed topursue his whistleblower defense, the WPA would in

effect prohibit later Congresses from directing agencies topass nondisclosure regulations. The government is con-

cerned that, under Mr. MacLean’s reading, the WPAwould prohibit agencies from disciplining employees for

violating nondisclosure regulations and thereby preventagencies from enforcing such regulations.

The government is mistaken. In spite of the WPA,

Congress remains free to enact statutes empoweringagencies to promulgate and enforce nondisclosure regula-

tions, and it has done so in the ATSA. The governmentignores the fact that the ATSA covers a wide range ofconduct that would not qualify as whistleblowing. Forexample, no one disputes that the ATSA empowers the

Agency to promulgate regulations that enable it to disci-pline employees who reveal SSI for personal gain or due

to negligence, or who disclose information that the em-ployee does not reasonably believe evidences a substantialand specific danger to public health or safety. The WPAalso does not prohibit the Agency from following the

ATSA’s mandate to regulate public access to informationthat the Agency might otherwise be forced to disclose

under the Freedom of Information Act (FOIA). Indeed, itappears that the paramount goal of the ATSA is to em-power the Agency to reject the public’s requests for Agen-cy intelligence because the statute recites that,

“[n]otwithstanding [FOIA] . . . , the Secretary of Transpor-

tation shall prescribe regulations prohibiting disclosure ofinformation obtained or developed in ensuring securityunder this title.” 49 U.S.C. § 40119(b)(1); see also Public

14a



MACLEAN v. DHS 15

Citizen, Inc. v. FAA, 988 F.2d 186, 194–96 (D.C. Cir. 1993)(analyzing the predecessor statute to the ATSA and

explaining that Congress’s desire to enable the Agency tobar FOIA requests for information that qualifies as SSI

was one of the driving forces behind the passage of thatstatute). Our interpretation of the WPA does not deprive

the ATSA of meaning.

CONCLUSION

Because Mr. MacLean’s disclosure is not “specifically

prohibited by law” within the meaning of the WPA, wevacate the Board’s decision and remand for a determina-

tion whether Mr. MacLean’s disclosure qualifies for WPA

protection. For example, it remains to be determinedwhether Mr. MacLean reasonably believed that thecontent of his disclosure evidenced a substantial and

specific danger to public health or safety.

VACATED AND REMANDED

15a





ROBERT J. MACLEAN,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY, Respondent.

______________________

2011-3231 ______________________

Petition for review of the Merit Systems Protection

Board in No SF0752060611-I-2. ______________________

W ALLACH, Circuit Judge, concurring.

Mr. MacLean presented substantial evidence that he

was not motivated by personal gain but by the desire toprotect the public. He averred proof that he sought

direction from his supervisors before making allegedlyprotected disclosures. While I join in the analysis and theresult of the majority opinion, I concur to emphasize thatthe facts alleged, if proven, allege conduct at the core of

the Whistleblower Protection Act.

16a



NOTE: This order is nonprecedential.



ROBERT J. MACLEAN,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent. ______________________

2011-3231 ______________________

Petition for review of the Merit Systems Protection

Board in No. SF0752060611-I-2. ______________________

ON PETITION FOR REHEARING AND

REHEARING EN BANC ______________________

Before R ADER, Chief Judge, NEWMAN, LOURIE, D YK ,

PROST, MOORE, O’M ALLEY , REYNA , W ALLACH, and

T ARANTO, Circuit Judges.*

PER CURIAM.

O R D E R

A combined petition for panel rehearing and rehear-ing en banc was filed by the respondent Department ofHomeland Security, and a response thereto was invited bythe court and filed by the petitioner. The petition and

response were referred to the panel that heard the appeal,and thereafter were referred to the circuit judges who are

in regular active service.

Case: 11-3231 Document: 77 Page: 1 Filed: 08/30/2013

17a



MACLEAN v. DHS 2

Upon consideration thereof,

IT IS ORDERED THAT:

(1) The petition for panel rehearing is denied.

(2) The petition for rehearing en banc is denied.

The mandate of the court will issue on September 6,2013.

FOR THE COURT

August 30, 2013 /s/ Daniel E. O’TooleDate Daniel E. O’Toole

Clerk

* Circuit Judge Chen did not participate.

cc: Lawrence BergerThomas M. DevineMichael P. Goodman

F. Douglas HartnettDavid B. Nolan

Case: 11-3231 Document: 77 Page: 2 Filed: 08/30/2013

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