MacLean v. Homeland ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT J. MACLEAN, 
Petitioner, No. 06-75112
v.
 MSPB No.
0752-06-0611
DEPARTMENT OF HOMELAND
SECURITY, OPINION
Respondent.

On Petition for Review of an Order of the
Transportation Safety Administration
Argued and Submitted
July 17, 2008—San Francisco, California
Filed September 16, 2008
Before: Jerome Farris, Eugene E. Siler, Jr.,* and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
12997
13000 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
COUNSEL
Peter H. Noone, Esq., Avery, Dooley, Post & Avery, LLP,
Belmont, Massachusetts, for Robert J. MacLean, petitioner.
Eric Fleisig-Greene (argued), Appellate Staff, Department of
Justice, Civil Division, Washington, D.C.; Peter D. Keisler,
Assistant Attorney General, Department of Justice, Washing-
ton, D.C.; and Douglas N. Letter, Appellate Staff, Department
of Justice, Civil Division, Washington, D.C., for the Depart-
ment of Homeland Security, respondent.
OPINION
PER CURIAM:
Robert J. MacLean petitions for review of an order issued
by the Transportation Safety Administration. He contends that
the order violates: (1) the TSA’s own regulations, (2) the
Whistleblower Protection Act, (3) the Anti-Gag statute, (4)
due process, and (5) the rule against retroactive administrative
adjudication. We deny the petition.
BACKGROUND
In late July, 2003, while working as a Federal Air Marshal
in Nevada, MacLean received a text message on his
government-issued cell phone stating that “all RON (Remain
Overnight) missions . . . up to August 9th would be cancel-
led.” This message indicated to MacLean that there would be
no Federal Air Marshals on overnight flights from the time of
MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13001
the text message up to August 9, 2003. MacLean believed that
the cancellation of these missions was detrimental to public
safety. He raised this concern with his supervisor, who did not
make further inquiry. MacLean then attempted unsuccessfully
to alert the Office of Inspector General. On July 29, 2003,
MacLean disclosed the text message to members of the press.
The Federal Air Marshal Service later confirmed that the text
message’s contents did not reflect a final decision of its direc-
tor and there was no cancellation of overnight missions.
On September 13, 2005, the Department of Homeland
Security issued a notice of proposed removal to MacLean.
The agency alleged that MacLean’s disclosure of the text
message on July 29, 2003, violated 49 C.F.R. § 1520.7(j)
(2003), which barred the disclosure of “sensitive security
information.” MacLean appealed his termination to the Merit
Systems Protection Board.
During the proceedings before the MSPB, the Transporta-
tion Safety Agency issued a final order on August 31, 2006,
regarding the text message. The order determined simply that,
under the regulations in place in 2003, 49 C.F.R. § 1520.7(j),
the text message contained “sensitive security information.”
There was no notice and comment period or other opportunity
for MacLean to present evidence before the TSA issued the
order. MacLean timely appealed the TSA’s order. The MSPB
has dismissed MacLean’s appeal without prejudice pending
the outcome of the appeal.
DISCUSSION
I. Jurisdiction
Pursuant to 49 U.S.C. § 46110(c), we have jurisdiction to
review only final agency “orders.” We give “broad construc-
tion to the term ‘order’ in” § 46110, Gilmore v. Gonzales, 435
F.3d 1125, 1132 (9th Cir. 2006), cert. denied, 127 S. Ct. 929(2007), but the TSA’s classification of its own order as a
13002 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
“final order” does not control our review, see San Diego Air
Sports Ctr., Inc. v. FAA, 887 F.2d 966, 968 (9th Cir. 1989).
Generally, an order under § 46110 is reviewable if it “ ‘carries
a note of finality, and applies to any agency decision which
imposes an obligation, denies a right, or fixes some legal rela-
tionship.’ ” Gilmore, 435 F.3d at 1132 (quoting Crist v.
Leippe, 138 F.3d 801, 804 (9th Cir. 1998)). We have
explained that an agency decision qualifies as a final “order”
under 49 U.S.C. § 46110 if it possesses four qualities: (1) it
is supported by a “reviewable administrative record,” (2) it is
a “ ‘definitive’ statement of the agency’s position,” (3) it has
a “ ‘direct and immediate effect’ on the day-to-day business
on the party asserting wrongdoing,” and (4) it “ ‘envisions
immediate compliance with [the order’s] terms.’ ” See id.(quoting Crist, 138 F.3d at 804).
We have jurisdiction to review the TSA order. First, the
order is supported by a reviewable record, despite being only
two pages. See id. at 1133 (a record may be adequate even if
“little more than a letter” (internal quotation omitted)). Sec-
ond, the order is a definitive statement of the TSA’s position
regarding the contents of the text message. Third, the order
has an immediate and prospective impact on MacLean’s chal-
lenge to his termination before the MSPB, despite the fact it
applies to a three year-old text message. Fourth, the order
requires compliance with its terms, especially in regards to the
MSPB proceedings. The order “fixes some legal relationship”
between MacLean and the agency and “carries a note of final-
ity.” Id. (citation omitted).
II. Standard of Review
We review de novo legal questions raised by the TSA’s
order. See S. Cal. Aerial Advertisers’ Ass’n v. FAA, 881 F.2d
672, 677 (9th Cir. 1989). We review the TSA’s findings for
substantial evidence. See 49 U.S.C. § 46110(c). We may set
aside the order if it is unconstitutional, contrary to law, arbi-
trary and capricious, ultra vires, or unsupported by substantial
MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13003
evidence, see 5 U.S.C. § 706(2)(A)-(E), but we must also
accord deference to an agency’s interpretation of its own reg-
ulations, see Alhambra Hosp. v. Thompson, 259 F.3d 1071,
1074 (9th Cir. 2001). We may “affirm, amend, modify, or set
aside any part of the order and may order the Secretary . . .
to conduct further proceedings.” 49 U.S.C. § 46110(c).
III. Permissible Agency Adjudication
MacLean contends that the TSA order is an incorrect appli-
cation of 49 C.F.R. § 1520.7(j) (2003) and is unsupported by
substantial evidence. We disagree.
[1] Section 1520.7(j) (2003) designates as “sensitive secur-
ity information . . . [s]pecific details of aviation security mea-
sures . . . applied directly by the TSA . . . [which] includes,
but is not limited to, information concerning specific numbers
of Federal Air Marshals, deployments or missions, and the
methods involved in such operations.” Information falling
within this designation is automatically considered “sensitive
security information” without further action from the TSA. 49
C.F.R. § 1520.7 (2003). The TSA has authority to designate
information as “sensitive security information” pursuant to 49
U.S.C. § 114(s) and 49 C.F.R. § 1520.
[2] The information contained in the text message qualifies
as “sensitive security information.” The message contained
“specific details of aviation security measures” regarding “de-
ployment and missions” of Federal Air Marshals. 49 C.F.R.
§ 1520.7(j) (2003). That there could have been more specific
information in the message does not undermine this determi-
nation. See id. Given the deference owed to the agency, “an
alternate reading is [not] compelled by the regulation’s plain
language.” See Alhambra Hosp., 259 F.3d at 1074 (quotation
marks omitted).
[3] The order is also supported by substantial evidence. As
we have stated, a record may be adequate even if it is “little
13004 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
more than a letter.” Gilmore, 435 F.3d at 1133. The TSA
demonstrated an adequate factual basis on which to make its
unremarkable determination that the text message contained
“sensitive security information.” MacLean has failed to dem-
onstrate what more the TSA needed to show to support the
order. The order is valid.
IV. Whistleblower Protection Act
MacLean contends that the order violates the Whistle-
blower Protection Act, 5 U.S.C. § 2302, by punishing him for
making a protected disclosure.
[4] The Whistleblower Protection Act forbids the govern-
ment from taking a “personnel action” against an employee
who discloses information that the employee believes evi-
dences:
(i) a violation of law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to pub-
lic health or safety,
if such disclosure is not specifically prohib-
ited by law and if such information is not
specifically required by Executive order to
be kept secret in the interest of national
defense or the conduct of foreign affairs. .
..
5 U.S.C. § 2302(b)(8)(A). A “personnel action” includes
disciplinary and corrective actions and removal actions. 5
U.S.C. § 2302(a)(2)(A)(iii); see 5 U.S.C. § 7512(1).
[5] The Whistleblower Protection Act does not apply to the
order. The order is not a “personnel action,” as required by
the Act.1 It is merely a determination that the text message
1
Our review is jurisdictionally limited to the scope of the TSA’s order.
Accordingly, we do not consider whether MacLean was correctly termi-
MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13005
contained “sensitive security information” pursuant to 49
C.F.R. § 1520.7(j). The fact that the order has some impact on
MacLean’s proceedings before the MSPB does not convert it
to a “personnel action.” We deny MacLean’s claim.
V. Anti-Gag Statute
MacLean contends that the order violates an appropriations
bill known as the “Anti-Gag statute,” Pub. L. No. 109-115,
§ 820, 119 Stat. 2396, 2500-2501 (2005).
[6] A private party may not sue under federal law unless it
provides an express or implied cause of action. See Williams
v. United Airlines, Inc., 500 F.3d 1019, 1021-23 (9th Cir.
2007). We look to congressional intent to determine whether
an act contains an implied private cause of action. See id. at
1023. The Anti-Gag statute is an uncodified appropriations
measure that provides no express cause of action. The rele-
vant portion of the statute is a budgetary requirement that for-
bids the appropriation of funds “to implement or enforce the
agreements in Standard Forms 312 and 4414 of the Govern-
ment or any other nondisclosure policy, form, or agreement”
unless a specific disclaimer is added. 119 Stat. at 2500.
[7] We also find nothing to support a holding that the Anti-
Gag statute contains an implied cause of action, and MacLean
has failed to make this argument. Thus, MacLean has not
stated a claim on which relief may be granted.
Even assuming that such a cause of action exists, MacLean
has not demonstrated that the order is a “nondisclosure policy,
form, or agreement” to which the statute could apply. Id.
nated under the rules and regulations governing valid personnel actions,
including the Whistleblower Protection Act. All such contentions may be
brought before the MSPB in MacLean’s challenge to his termination in
that tribunal.
13006 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
VI. Due Process
MacLean contends that the order violates due process by
denying him the opportunity to raise objections during a
notice and comment period before the order issued.
[8] Due process protects against the deprivation of “life,
liberty, or property.” U.S. Const. amend. V. “Procedural due
process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests within
the meaning of the Due Process Clause of the Fifth or Four-
teenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332
(1976). “To be entitled to procedural due process, a party
must show a liberty or property interest in the benefit for
which protection is sought.” Greenwood v. FAA, 28 F.3d 971,
975 (9th Cir. 1994) (citing Morrissey v. Brewer, 408 U.S.
471, 480-81 (1972)). A notice and comment period is gener-
ally required for agency rulemaking, but not for adjudications.
See 5 U.S.C. § 553; Yesler Terrace Cmty. Council v. Cisne-
ros, 37 F.3d 442, 448 (9th Cir. 1994). An agency adjudication
may require a notice and comment period if it constitutes de
facto rulemaking that “affects the rights of broad classes of
unspecified individuals.” Cisneros, 37 F.3d at 448.
[9] MacLean is not entitled to procedural due process. The
order was the result of an agency adjudication, see 5 U.S.C.
§ 551(7) (defining an adjudication as an “agency process for
the formulation of an order”), and does not directly deprive
him of any liberty or property interests in his position as a
Federal Air Marshal. It merely designates information as
“sensitive security information,” which has only a tangential
relation to MacLean’s interest in his position as an Air Mar-
shal. MacLean may still contest his termination before the
MSPB, where he may raise the Whistleblower Protection Act
and contend that the lack of clarity of the TSA’s 2003 “sensi-
tive security information” regulations is evidence MacLean
disseminated the text message under a good faith belief the
MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13007
information did not qualify as “sensitive security informa-
tion.”
Likewise, the order did not affect the rights of a “broad
class” of people, so no notice and comment period was
required. See Cisneros, 37 F.3d at 448.
VII. Retroactive Agency Adjudication
Relying on Bowen v. Georgetown Univ. Hosp., 488 U.S.
204 (1988), MacLean contends that the order is an impermis-
sible retroactive agency action. However, “[r]etroactivity is
not favored in the law.” Id. at 208. As a rule, “congressional
enactments and administrative rules will not be construed to
have retroactive effect unless their language requires this
result.” Id.[10] The TSA order does not constitute a retroactive
agency adjudication. Rather, the agency applied regulations
that were in force in 2003 to determine that information cre-
ated in 2003 was “sensitive security information.” This differs
from Bowen, where the Court held that the Department of
Health and Human Services could not apply a new rule
requiring private hospitals to refund Medicare payments for
services rendered before the rule existed. See id. at 208-09,
215-16. The TSA order comports with the “principle that the
legal effect of conduct should ordinarily be assessed under the
law that existed when the conduct took place.” Landgraf v.
USI Film Prods., 511 U.S. 244, 265 (1994) (internal quotation
omitted). We reject MacLean’s claim.
PETITION FOR REVIEW DENIED.