MacLean v. Department of Homeland Security
Filed September 16, 2008
Ninth Circuit Court of Appeals
Cite as 06-75112

Petition for Review of Terminated Employee Denied in Employment Suit against Dept of Homeland Security

Robert MacLean worked as a Federal Air Marshal. Once, during his tenure, he received a text message on his government-issued cell phone advising him that all overnight missions up to a specified date would be canceled. To MacLean, this meant that there would be no federal air marshals on overnight flights for that period.

MacLean considered the cancellation of the missions a public safety concern. When supervisors were unresponsive to his concerns, MacLean disclosed the text message to members of the press.

For this action, the Department of Homeland Security terminated MacLean for disclosing sensitive security information. MacLean appealed to the Merit Systems Protection Board(MSPB).

During appeal to the MSPB, the Transportation Safety Agency (TSA) issued a final order stating that the text message disclosed by MacLean contained “sensitive security information.” MaClean petitioned for review of the TSA’s order. In the meantime, the MPSB dismissed MacLean’s appeal pending the outcome of his appeal of the TSA’s order.

The Ninth Circuit court of appeals denied the petition, holding that MacLean stated no claims in his challenge to the TSA order.

Under 49 C.F.R. section 1520.7(j) (2003), sensitive security information includes information concerning Federal Air Marshals, their deployments or missions, and the methods involved in such operations. Such information is automatically considered sensitive security information without further action by the TSA.

According to court records, the information in the disputed text message qualified as sensitive security information and the order was supported by substantial evidence, as well.

The appeals court held that TSA had an adequate factual basis on which to make its “unremarkable” determination that the text message contained “sensitive security information.”

The appeals court rejected three of MacLean’s assertions.

• that the order violated the Whistleblower Protection Act by punishing him for making a protected disclosure. The order was not a “personnel action” as required by the Whistleblower Act. Rather, it was merely a determination that the text message contained “sensitive security information” pursuant to the pertinent regulatory definition.


• That there was a violation of the Anti-Gag Statute - The Anti-Gag Statute is an “uncodified” appropriations measure that provides no express cause of action.


• That there was a due process violation, as alleged, because MacLean was not entitled to procedural due process in the issuance of the order, which was the result of an agency adjudication that did not directly deprive him of any liberty or property interests.

Finally, the court concluded that MacLean was incorrect when he asserted that the order was an impermissible retroactive agency action. The TSA applied regulations that were in force in 2003 to determine that information created in 2003 was “sensitive security information.” This comported with the principle that the legal effect of conduct be assessed under the law that existed when the conduct took place.

The Ninth Circuit court of appeals therefore denied a petition for review, holding that the disputed text message sent by MacLean contained “sensitive security information” and therefore a violation.