MacLean v. Department of Homeland Security , 714 F.3d 1301 ( 2013 )

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 Protection
Board in No. SF0752060611-I-2.
______________________
Decided: April 26, 2013
______________________
LAWRENCE 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,
2 MACLEAN v. DHS
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, Alex-
andria, 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 deci-
sion 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 Whistle-
blower 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 brief-
ing, however, the Agency sent an unencrypted text mes-
sage 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 com-
plained to his supervisor and to the Office of Inspector
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 controversy
resulting 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, which
he 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 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 disclo-
sure 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 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 the
Board, arguing that his disclosure of the text message
was protected whistleblowing activity. After an interlocu-
tory appeal from the Administrative Judge (AJ), the full
Board determined that Mr. MacLean’s disclosure fell
4 MACLEAN v. DHS
outside the WPA because it was “specifically prohibited by
law.” 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 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 ap-
peal. 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 be-
cause 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 rea-
sonable. Moreover, the Board upheld the AJ’s finding
that 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 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 proce-
dures 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
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’s
Removal
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 of
SSI,” and concluded that, as a result, Mr. MacLean’s
communication 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 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 (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 agree-
ment 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 be-
lieved that the message was not SSI and that, in any
6 MACLEAN v. DHS
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.
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. 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 Marshals were not termi-
nated even though they disclosed SSI regarding specific
flights. Mr. MacLean contends that the Board ignored the
fact that other Marshals’ disclosures were for personal
gain, while his disclosure exposed and led to correcting an
Agency mistake. He thus argues that revealing the text
message to a reporter served the public interest, and that
his termination undermined the efficiency of the service.
The government counters that the Board did not
abuse 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. The
government contends that, because even a possibility that
a Marshal may be onboard is an important deterrent to
terrorist activity, Mr. MacLean’s disclosure compromised
flight safety and forced the Agency to reallocate scarce
resources 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 catastrophic
consequences. The government argues that Mr. MacLean
differs from the Marshals who kept their jobs in spite of
SSI breaches because those Marshals compromised only
individual flights and showed remorse.
We agree with the government. The Board analyzed
the relevant Douglas factors and did not abuse its discre-
8 MACLEAN v. DHS
tion in concluding that Mr. MacLean’s removal was not a
disparate penalty. MacLean II, 116 M.S.P.R. at 576, 580–
81. Unlike other Marshals, Mr. MacLean revealed that
multiple 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]gency
to lose trust in him,” id. at 579, because Mr. MacLean
admitted that he has “no regrets” and “feel[s] no remorse
for 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’s
removal.
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 The
statute at issue prohibits individuals in positions of
authority 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 that
the Board lacked jurisdiction over Mr. MacLean’s prohib-
ited personnel practice claim. The government’s argu-
ment is unsupported by the applicable statutes. The
Board has jurisdiction to entertain prohibited personnel
practice claims under 5 U.S.C. § 7701(c)(2), which states
that “the agency’s decision may not be sustained . . . if the
employee . . . 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 by
virtue of 49 U.S.C. § 40122(g)(2)(H).
MACLEAN v. DHS 9
formance of others.” 5 U.S.C. § 2302(b)(10)(A). The Board
concluded that Mr. MacLean’s prohibited personnel
practice challenge failed because he did not “meet his
burden 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 on
NBC 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 did
not 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 consistent
with the AJ’s determination that Mr. MacLean was
initially 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 disclosure
charge, 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, particularly
because of any disclosure of information by an
employee . . . which the employee . . . reasonably
10 MACLEAN v. DHS
believes evidences . . . a substantial and specific
danger 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 disclosure
of the text message was protected whistleblowing activity
because it determined that the disclosure was “specifically
prohibited 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 under
this 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 made
further 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, the
disclosure must be prohibited by a statute rather than by
a regulation. Thus, the core of the disagreement is
whether the ATSA “specifically prohibit[s]” disclosure of
information 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). Neither
party argues that the WPEA applies to this appeal.
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 the
WPA. 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 of
discretion 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., 56
M.S.P.R. 536, 540–46 (1993).
The government counters that Mr. MacLean violated
a 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’s
reading of the WPA eviscerates laws that provide for any
Agency discretion in classifying information as SSI, and
thus disables Congress from directing agencies to pass
nondisclosure regulations. Lastly, the government argues
that it does not make sense for Congress to order an
agency to promulgate nondisclosure regulations and at
the same time prohibit that agency from disciplining an
employee 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 prohibit
employee disclosures, and only empowers the Agency to
12 MACLEAN v. DHS
prescribe regulations prohibiting disclosure of SSI “if the
Secretary 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’s
draft version to simply “specifically prohibited by law.”
Congress did so because it was concerned that the broader
language “would encourage the adoption of internal
procedural regulations against disclosure, and thereby
enable 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 “a
statute which requires that matters be withheld from the
public as to leave no discretion on the issue, or . . . which
establishes particular criteria for withholding or refers to
particular types of matters to be withheld” could qualify
as a sufficiently specific prohibition. Id. In contrast, the
“detrimental to transportation safety” language of the
ATSA does not describe specific matters to be withheld. It
provides only general criteria for withholding information
and 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 more
apparent when it is contrasted with statutes that have
been determined to fall under the WPA’s “specifically
prohibited 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 penalizes
federal employees who “divulge[ ] . . . any information
MACLEAN v. DHS 13
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 to
the identity, confidential statistical data, amount or
source of any income, profits, losses, or expenditures of
any person, firm, partnership, corporation, or association
. . . . ” 18 U.S.C. § 1905. The same is true of § 6013 of the
Internal Revenue Code, which the Ninth Circuit in Coons
v. Secretary of the Treasury, 383 F.3d 879, 890–91 (9th
Cir. 2003), held to fall within the meaning of the WPA’s
“specifically prohibited” language. That statute prohibits
federal 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 on
to define “return” and “return information” in explicit
detail, 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 of
specific 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 regulations
pursuant to specific criteria (i.e., only information that
would be detrimental to transportation safety) makes this
a very close case. Indeed, the ATSA appears to fall in the
middle 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 Trade
Secrets Act and § 6013 of the Internal Revenue Code, and
(b) those in which Congress delegates legislative authority
to an administrative agency without circumscribing the
agency’s discretion. Regulations promulgated pursuant to
Congress’s express instructions would qualify as specific
legal prohibitions. In this case, given the clarity of the
statutory language and legislative intent behind the
14 MACLEAN v. DHS
WPA’s specificity requirement, the parameters set by
Congress 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 follows
our adoption of Mr. MacLean’s interpretation of the WPA.
The government argues that, if Mr. MacLean is allowed to
pursue his whistleblower defense, the WPA would in
effect prohibit later Congresses from directing agencies to
pass nondisclosure regulations. The government is con-
cerned that, under Mr. MacLean’s reading, the WPA
would prohibit agencies from disciplining employees for
violating nondisclosure regulations and thereby prevent
agencies from enforcing such regulations.
The government is mistaken. In spite of the WPA,
Congress remains free to enact statutes empowering
agencies to promulgate and enforce nondisclosure regula-
tions, and it has done so in the ATSA. The government
ignores the fact that the ATSA covers a wide range of
conduct that would not qualify as whistleblowing. For
example, 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 substantial
and specific danger to public health or safety. The WPA
also does not prohibit the Agency from following the
ATSA’s mandate to regulate public access to information
that the Agency might otherwise be forced to disclose
under the Freedom of Information Act (FOIA). Indeed, it
appears 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 of
information obtained or developed in ensuring security
under this title.” 49 U.S.C. § 40119(b)(1); see also Public
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 to
bar FOIA requests for information that qualifies as SSI
was one of the driving forces behind the passage of that
statute). 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, we
vacate 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 determined
whether Mr. MacLean reasonably believed that the
content of his disclosure evidenced a substantial and
specific danger to public health or safety.
VACATED AND REMANDED
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 Protection
Board in No SF0752060611-I-2.
______________________
WALLACH, Circuit Judge, concurring.
Mr. MacLean presented substantial evidence that he
was not motivated by personal gain but by the desire to
protect the public. He averred proof that he sought
direction from his supervisors before making allegedly
protected disclosures. While I join in the analysis and the
result of the majority opinion, I concur to emphasize that
the facts alleged, if proven, allege conduct at the core of
the Whistleblower Protection Act.