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

MacLean became a Federal Air Marshal in 2001.
In 2003 the Agency briefed Marshals about a potential hijacking plot and issued an unencrypted text message canceling Las Vegas flights.
MacLean complained and told an MSNBC reporter, leading to public controversy and later NSA directive withdrawal.
In 2004 MacLean appeared on NBC Nightly News in disguise; the Agency investigated and ultimately removed him for an unauthorized disclosure of SSI.
Ninth Circuit upheld the SSI designation; the Board later held the disclosure was not WPA-protected because it was “specifically prohibited by law” under ATSA.
The Board’s ruling was vacated and remanded to consider whether the disclosure could be protected by the WPA; concurrence notes core whistleblower issues.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ATSA can amount to a “specifically prohibited by law” rule under the WPA.	MacLean argues ATSA lacks explicit prohibitions; not a “specific prohibition.”	Government contends ATSA regulations constitute a specific prohibition.	ATSA not sufficiently specific; remand to consider WPA protection.
Whether the Board correctly applied the Chenery doctrine and charged grounds.	Discipline based on different grounds than charged.	Regulation relied upon is equivalent to the charged grounds.	No Chenery violation; grounds are equivalent to initial charge.
Whether due process was violated by labeling SSI after disclosure.	Not put on notice that disclosure violated SSI.	Regulations and NDA gave notice; no due process violation.	Not due process violation; notice adequate.
Whether removal was reasonable under Douglas factors.	Removal excessive given first-time offense and public-interest motive.	Removal promotes efficiency given public-safety risk.	Board did not abuse discretion; removal reasonable.
Whether there was prohibited personnel practice retaliation claim.	Investigation tied to FLEOA activities.	Investigation justified by unauthorized media appearance; not pretextual.	Substantial evidence supports no prohibited personnel practice.

MacLean v. Dep’t of Homeland Sec., 116 MSPR 562 (Fed. Cir. 2011) (central whistleblower removal and SSI designation dispute)
Kent v. Gen. Servs. Admin., 56 MSPR 536 (1993) (Trade Secrets Act as example of a ‘specifically prohibited by law’ provision)
Coons v. Secretary of the Treasury, 383 F.3d 879 (9th Cir. 2004) (IRS § 6013 disclosure statute; example of specificity under WPA)
Public Citizen, Inc. v. FAA, 988 F.2d 186 (D.C. Cir. 1993) (FOIA and nondisclosure regulation context under ATSA)
Welshans v. U.S. Postal Serv., 550 F.3d 1100 (Fed. Cir. 2008) (standards for reviewing Board legal determinations)