*1
1301
212,
588,
103 S.Ct.
74
(1983),
L.Ed.2d 402
ly, in Evans v. City
Chicago, the Sev-
is
directly
almost
point.
on
Bowen in
enth
60(b)(5)
Circuit held Rule
applicable
volved an action by a former Postal Ser
to a consent decree based on the outcome
employee
vice
against both the Service and
prior
of a
appeal when a subsequent ap-
the American Postal
Union,
Workers
to peal regarding damages overruled the first
had belonged
panel
during
decision’s conclusion of liability. 10
his employment.
214,
against grounds
that Bowen had not cross-appealed. Id. at
82 n. 6. Supreme Court held that this
application of the cross-appeal rule was
“erroneous,” because “Bowen had no rea
son to be unhappy with the award.” Bow MacLEAN, Robert J. en, Petitioner, U.S. 217-18 n. S.Ct. Then-Justice Rehnquist wrote separately v. point, on that suggesting that, contrary to DEPARTMENT OF HOMELAND the majority, a conditional cross-appeal SECURITY, Respondent. may have required. been See id. at 246- 47, 103 S.Ct. J., 588 (Rehnquist, No. dissent 2011-3231. ing). There was requirement no here that United Court Appeals, States file
Photoscribe a conditional cross-appeal. Federal Circuit. 60(b)(5) Rule has applied been in situa- April 26, 2013. tions similar to this case. For example, in Jackson, Jackson the court found Rule
60(b)(5) relief applicable to a judgment prior
based on a judgment that had been 60(a).
corrected pursuant to Rule
F.2d
(D.C.Cir.1960).
Similar-
*2
See
Lawrence Berger, Mahon Burger, & Cove, NY, Glen argued petitioner. for Of counsel on the brief was Thomas M. De- vine, Government Accountability Project, of Washington, DC. Goodman,
Michael P. Attorney, Trial Litigation Branch, Commercial Civil Divi- sion, United States Department Justice, of Washington, DC, argued respondent. With on him the brief were Stuart F. Delery, Acting Attorney General, Assistant reporter about an MSNBC Lean told Director, and Davidson, Todd E. Jeanne controversy to “create so as directive Director. Deputy Hughes, M. II, rescission.” resulting in [its] published 565. MSNBC 116 M.S.P.R. directive, and the criticizing an article members it after several withdrew the criticism. joined in Congress on appeared 2004, Mr. MacLean *4 to criticize disguise Nightly News NBC MOORE, and PROST, Before code, he believed which dress Agency the Judges. WALLACH, Circuit easily identified. to be Marshals allowed rec- Agency from the However, someone filed Circuit the court Opinion Agency’s the During his voice. ognized filed Concurring opinion Judge MOORE. Mr. MacLean investigation, subsequent Judge WALLACH. by Circuit the cancellation revealed that he admitted MOORE, Judge. Circuit in 2003. reporter MSNBC to an directive removed MacLean Eventually, Mr. for review petitions J. MacLean Robert with his contact Systems position the Merit from his of final decision of a unau- an constituted (Board), reporter sustained which the MSNBC Board Protection in- security of sensitive disclosure Security thorized Administra Transportation the Agency the (SSI). Although MacLean formation of Mr. removal (Agency’s) tion’s message the text initially labeled Marshal Air had of Federal position from sent, subsequently it it was Dep’t when v. as SSI (Marshal). MacLean See of content (2011) that its stating order an Sec., issued 116 M.S.P.R. Homeland II). incor was SSL (MacLean Because Board Pro the Whistleblower interpreted rectly order challenged SSI MacLean Mr. (WPA), and remand. we vacate tection a violation as Circuit in the Ninth imper and as an regulations own Agency’s Baokground court action, but retroactive missible in 2001. a Marshal became MacLean Mr. Mac challenges. rejected Mr. MacLean’s a brief- 2003, received all Marshals July Sec., 543 F.3d Homeland Dep’t Lean was a that there ing from Cir.2008). that (9th It held 1145, 1150-52 “ Airliners.” hijack U.S. plot’ ‘potential designating supported evidence substantial Soon II, 116 M.S.P.R. MacLean applica message as SSI under text however, briefing, after 1150, and that id. at regulations, ble to the message unencrypted text an sent ac in retroactive engage Agency did all mis- cancelling phones cell Marshals’ ... regulations “applied it tion because Vegas early until from Las flights sions on the text to determine in 2003” force directive, Mr. receiving this After August. SSI, id. at 1152. message “suspen- concerned that became MacLean be- his removal challenged Mr. MacLean hijack- during a missions overnight sion disclosure Board, arguing fore flying danger a ing alert created whistle- protected message was the text supervi- to his complained Id. He public.” interlocutory activity. After General, blowing Inspector and to the Office sor Judge Administrative from the appeal could be nothing responded that they but that Mr. determined (AJ), the full Board Dissatisfied, Mac- 212-13. done. J.A. fell outside the WPA legal determinations de novo. Welshans v. it because was “specifically prohibited by Serv., U.S. Postal F.3d 2302(b)(8)(A)(2008). law.” 5 U.S.C. (Fed.Cir.2008).
Board reasoned that the regulation prohib-
iting
SSI,
disclosure of
upon
I. Application
of Agency Regulations
Agency relied when it removed Mr. Mac-
to Mr. MacLean’s Removal
Lean, had the force of law. MacLean v.
“[ujnder
Board explained that,
Dep’t
Sec.,
Homeland
112 M.S.P.R.
regulations in effect
July 2003,
informa-
(2009) (MacLean I).
tion relating to the deployment of [Mar-
The AJ then upheld Mr. MacLean’s re-
shals] was included within the definition of
moval and the Board affirmed in MacLean
SSI,” concluded
result,
as a
II, the decision now on appeal. Reconsid- MacLean’s communication with a reporter
I,
ering MacLean
explained
Board
constituted an unauthorized disclosure.
regulation
is not a “law” within the
II,
The Board also determined that
MacLean
the
contends
AJ
that the Board wrongly
applied the
regulation
correct
in
concluded
upholding
that
regulation
the
it ultimately
the Agency’s removal of MacLean,
Mr.
relied on
uphold
removal,
his
49 C.F.R.
that
penalty
the
§
removal
1520.7(j),
was reason-
which
in
2003,
in
force
is
Moreover,
able.
the
upheld
Board
the same as the 2005 regulation. Mr.
AJ’s finding that the
did
not
argues
termi- MacLean
that the Board violated
nate Mr.
MacLean
retaliation for his
the rule of SEC v. Chenery Corp., 318 U.S.
activities on behalf of
80, 87,
the Federal
454,
Law
63 S.Ct.
(1943),
tion 1295(a)(9). under cy’s designation eventual of the text mes- SSI, sage as his removal violated his due
Discussion process rights because the message was We must affirm the Board’s deci not labeled SSI when it was sent. He “(1) sion unless it is arbitrary, capricious, argues that termination was improper an discretion, abuse of or otherwise not in because he did not know that he was vio- (2) law; accordance with obtained without lating any Agency rules revealing the procedures required by law, rule, or regu content of the text message. Mr. Mac- lation having followed; (3) been or unsup Lean admits that signed he a nondisclo- ported by substantial evidence.” 5 agreement U.S.C. sure as a condition of his em- 7703(e) (2012). We review the ployment, Board’s which states that Marshals does of SSI prohibiting re- “[unauthorized for removed” “may be element, MacLean Mr. intent an in- include classified security-sensitive
lease
subjective
be
II,
exonerated
116 M.S.P.R.
cannot
MacLean
formation.”
message
the text
content
however,
that the
that he believed
belief
argues,
He
aas
protected
he was
or that
not SSI
not SSI
message was
that the
as a whistle-
event,
protected
whistleblower.
he was
any
rejected
argument
Repeating
blower.
of Mr.
Reasonableness
II.
thus insists
Board, Mr. MacLean
by the
Removal
MacLean’s
proceed
faith
good
he tried
that
law.
within
argues
MacLean
Mr.
fac
analyze adequately
failed to
Board
ar
MacLean’s
find Mr.
do not
We
Admin
Douglas Veterans
listed in
tors
charge
Agency’s
challenging
guments
istration,
5 M.S.P.R.
MSPB
regulation
persuasive.
to be
(1981),
mitigation
possible
uphold
upon
ultimately relied
Board
MacLean
Mr.
removal.
penalty
removal, 49 C.F.R.
take into
Board did
contends
from
(2002), is no different
§ 1520.7©
a one-time
he was
fact that
initially account
he was
under
regulation
unblem
had
otherwise
1520.5(b)(8)(ii)
offender
49 C.F.R.
charged,
argues
also
record.
dis
ished
bars
(2005).
regulation
The earlier
discipline”
“comparative
Douglas’s
of aviation securi
details
“[sjpecific
closing
*6
removal
favor of
weigh in
did not
con
“information
factor
measures,” including
ty
not terminat
were
[Marshals],
Marshals
other
because
numbers
cerning
regard
SSI
they disclosed
missions,”
though
latter
the
even
while
ed
deployments
con
Mr. MacLean
flights.
avia
ing specific
details of
revealing “specific
prohibits
the fact
ignored
Board
and
that the
“[infor
tends
security measures”
...
per
fact,
for
were
disclosures
Marshals’
concerning deployments.”
other
mation
exposed
his disclosure
history
gain,
shows
while
regulation’s
sonal
the
mistake.
Agency
ver
1520.5(b)(8)(h)
correcting
a recodified
simply
led to
is
and
text
revealing the
argues
36. Because
See J.A.
thus
He
sion
1520.7®.
public
re
the
reporter
MacLean for
served
Mr.
to a
Agency
message
removed
under
SSI,
affirmed
termination
interest,
the Board
that his
vealing
and
and
reason,
the service.
efficiency
that same
termination
mined
Chenery doc
violate the
did not
Board
counters
government
The
trine.
it
when
its discretion
did
abuse
Board
termi-
MacLean’s
that Mr.
Mac-
reject Mr.
determined
We likewise
efficiency
the ser-
promoted
argu
faith”
nation
“good
process
due
Lean’s
is
there
argues that
government
The
and vice.
regulation
applicable
Both the
ments.
actions
MacLean’s
that Mr.
evidence
that Mr. no
agreement
nondisclosure
govern-
safer. The
flying public
that made
on notice
put him
signed
MacLean
possi-
that,
even
contends
because
coverage ment
concerning
revealing information
is an
may be onboard
Marshal
bility that a
termi
lead to
could
Marshals
flights
activity,
terrorist
important deterrent
Thus,
did
violate
nation.
compromised
formally desig Mr.
though it
due
even
process
and forced
safety
flight
it
only
message as SSI
after
the text
nated
this
to address
resources
scarce
Furthermore,
agree with
reallocate
we
was sent.
ex-
government
vulnerability. The
regula-
new
because
the government
plains that, although Mr. MacLean was a
thority from discriminating against a gov-
first-time
record,
offender with a clean
he
employee
ernment
“on the basis- of con-
properly
removed because his disclo- duct which does not adversely affect the
sure could have had catastrophic
performance
conse-
... or the
quences.
government
argues that
performance
of others.”
MacLean differs from the
2302(b)(10)(A).
Marshals who
The Board concluded
kept
jobs
their
in spite of SSI breaches
that Mr. MacLean’s prohibited personnel
because those
compromised
Marshals
only practice challenge failed because he did
flights
individual
and showed remorse.
not “meet his burden to establish that
the reason
articulated
the [Ajgency
agree
We
with
government.
was pretextual and that
the real reason
analyzed
Board
the relevant Douglas fac-
underlying that decision
FLEOA
tors
did
not abuse its discretion in
II,
activities.” MacLean
116 M.S.P.R. at
concluding that Mr. MacLean’s removal
575. Mr. MacLean reasserts his discrim-
was not a disparate penalty.
II,
ination argument on appeal. He con-
III. MacLean’s Prohibited vestigate Mr. MacLean days “within of his Personnel Practice Claim appearance” unauthorized on Nightly NBC The rejected Board News, Mr. Mac- which was “approximately 22 Lean’s argument that the Agency violat months after began he organizing and ed the Civil Service Reform by in leading the chapter.” [FLEOA] J.A. 55 vestigating him in retaliation for his (quotation omitted). marks Although the FLEOA activities.1 The statute at issue Agency ultimately pursue did not the me- prohibits individuals in positions of au- dia appearance charge and focused on the 1. The government submitted a 7701(c)(2), letter arguing § which states “the that agency's that the Board jurisdiction lacked over may Mr. decision not be sustained ... if the em- prohibited personnel MacLean's practice ployee ... shows that the decision based government's claim. The argument is unsup- any prohibited on personnel practice de- ported by applicable The statutes. 2302(b) Board scribed in section of this title.’’ Sec- jurisdiction has to prohibited entertain per- tion applies 7701 to employees by practice sonnel claims under U.S.C. virtue of 49 40122(g)(2)(H). U.S.C. to danger specific substantial ... a investiga- initial charge, the disclosure SSI 2302(b)(8); safety.” 5 U.S.C. ... public frivolous or to be appear does at 581. II, 116 M.S.P.R. MacLean see by Di- justified it was because pretextual ADM 3700.
rective
that, in
dispute
do not
parties
The
“specifically
the WPA’s
to fall under
order
Affirmative
MacLean’s
Mr.
IV.
the disclosure
proviso,
by law”
prohibited
the WPA
Under
Defense
rather
by a statute
prohibited
must be
of
Thus,
core
posi-
regulation.
individuals
a
than
prohibits
WPA
The
ATSA
is whether
taking “personnel
a
disagreement
authority from
of
tions
in
of
disclosure
employee
prohibit[s]”
“specifically
a
against
action”
flights
coverage concerning
circumstances,
formation
particularly
certain
of the
meaning
by Marshals within
of information
any disclosure
WPA.
employee
... which
... a
evidences
reasonably believes
...
(three mem-
amici
public
to
danger
specific
substantial
Board
that
argue
Congress)
bers of
is
if such disclosure
safety,
or
health
ATSA’s
erroneously concluded
....
by law
prohibited
specifically
Transporta-
Secretary of
to the
mandate
prohibiting
added).
regulations
2302(b)(8)
“prescribe
(emphasis
tion to
information
kinds
affir-
of certain
disclosure”
rejected
Board
under the WPA.
prohibition
of the
specific
is a
disclosure
that his
defense
mative
“specifically
phrase
whistleblowing They contend that
protected
message was
text
only
can
WPA
in the
by law”
the dis- prohibited
it determined
activity because
statutory language
explicit
by law”
refer
prohibited
“specifically
closure
of information.
classes
the WPA.
law identifies
meaning of
within
“detrimental
ATSA,
the ATSA’s
They argue
upon is the
relied
that the Board
language does
safety”
transportation
part:
states,
relevant
which
with-
criteria
particular
not establish
title 5
Notwithstanding section
great
and leaves
holding information
Transportation
Secretary of
...,
is
Agency,
discretion
deal of
prohibiting
regulations
prescribe
shall
requirement
the WPA’s
with
inconsistent
obtained
information
ATSA
They contrast
specificity.
security under
ensuring
developed in
directly
Act, which
Trade Secrets
with the
*8
Transporta-
Secretary
title
this
of
if
employ-
any federal
removal
authorizes
disclosing the
decides
tion
information
into
that falls
information
divulges
ee who
transportar
to
detrimental
... be
would
§ 1905
U.S.C.
categories.
particular
safety.
Ad-
Servs.
v. Gen.
(2008);
Kent
see also
40119(b)(1) (2009) (emphases
§
(1993).
min.,
540-46
56 M.S.P.R.
that re-
added).
conclusion
its
Because
Mac-
that Mr.
counters
government
The
message
the text
the content
vealing
promulgated
regulation
a
violated
Lean
by the ATSA
prohibited
specifically
directive
legislative
express
an
to
unnecessary,
pursuant
inquiry
WPA
further
made
his disclosure
ATSA,
made
the question
not reach
did
the Board
It
by a statute.
prohibited”
“specifically
“reasonably be-
whether
disclosure
that Mr. MacLean’s
argues
thus
“evidence[d]
information
that this
lievefd]”
argues that
(WPEA).
party
Neither
recently
amended
WPA
appeal.
this
applies to
WPEA
Enhancement
Protection
Whistleblower
not qualify
protection.
does
for WPA
types of matters to be withheld” could
government contends that Mr.
qualify
MacLean’s-
as a sufficiently specific prohibition.
reading of the
contrast,
WPA
eviscerates laws
Id.
to
“detrimental
trans
provide
any
portation
Agency
safety”
discretion
language
classi-
of the ATSA
fying
SSI,
information as
does not
and thus
describe
disables
matters to !"be
withheld.,
Congress
It provides
from directing agencies
only general
pass
to
criteria
for withholding
nondisclosure regulations.
information
Lastly,
gives
and
some discretion to
argues that it
to
does not
fashion
make
regulations
for prohibiting
Congress
sense for
to
disclosure.
agency
order an
to
Thus, the ATSA does not “specifically
promulgate
pro
regulations
nondisclosure
employee
hibit”
conduct within the mean
at the
prohibit
same
agency
time
from
ing of the WPA.
disciplining
employee
for violating those
regulations by providing a defense under
The ATSA’s insufficient specificity be
the WPA.
comes even
apparent
more
when it is con
trasted with statutes that have been deter
agree
We
with Mr. MacLean that
mined to fall under the WPA’s “specifically
ATSA does
“specifically
not"
prohibit” the
prohibited by
proviso.
law”
For example,
issue in this case. The
Act,
the Trade Secrets
which the Board in
plain
ATSA’s
language does not expressly
Kent held to qualify as a specific prohibi
prohibit
disclosures,
only
tion, is extremely detailed and comprehen
empowers
prescribe
regula-
sive.
sets, reg- nondisclosure and enforce Thus, (2). promulgate when 6018(b)(1), ...id. ATSA. in the so ulations, it has done and of disclosure prohibit to seeks Congress the fact that the ignores information, government it the The has types of specific that range of conduct a wide accordingly. covers ATSA the statute to draft ability For whistleblowing. as qualify not would the ATSA’s Nonetheless, note that we ATSA that the disputes no one example, Transportation Secretary of the charge to regu- promulgate to Agency the empowers specif- to pursuant regulations prescribe to employ- discipline it that enable to lations that would (i.e., only information ic criteria or gain personal for SSI ees who reveal safety) transportation to detrimental be informa- disclose or negligence, to who due Indeed, the very close case. this a makes reasonably not does that the tion of the middle fall in the to appears ATSA specific and a substantial evidences believe opposite flanked of statutes spectrum safety. health danger public to under (a) squarely fall that by those ends Agency the not prohibit does also WPA law” prohibited “specifically the WPA’s reg- to mandate following the ATSA’s from Act the Trade Secrets as such proviso, that the to information access public ulate Code, and Revenue of the Internal § 6013 dis- to be forced otherwise might Agency leg- delegates (b) Congress in which those of Information Freedom the under close administrative to an authority islative that the (FOIA). Indeed, appears it agen- the circumscribing without agency empow- tois the ATSA goal of paramount promulgated Regulations cy’s discretion. re- reject public’s to er the express instruc- Congress’s pursuant intelligence because for quests legal prohi- as qualify tions would “[n]otwithstanding recites statute case, clarity of given In this bitions. Transporta- Secretary of ..., [FOIA] in- legislative statutory language regulations prohibiting prescribe tion shall require- specificity the WPA’s tent behind or de- obtained information disclosure are by Congress set ment, parameters this security under ensuring veloped over the ATSA enough push 40119(b)(1); also see title.” threshold. FAA, Citizen, F.2d Inc. Public by the similarly unpersuaded areWe (D.C.Cir.1993) pre- (analyzing parade argument government’s explain- ATSA and to the statute decessor adoption follows our necessarily horribles to enable Congress’s desire ing that interpretation of Mr. MacLean’s for informa- requests FOIA Agency to bar that, if Mr. argues WPA. was one as SSI qualifies whistle- pursue MacLean is allowed passage behind driving forces in effect would defense, the WPA blower statute). of WPA interpretation Our directing from Congresses later prohibit meaning. the ATSA deprive does regulations. pass nondisclosure agencies to that, under is concerned The government Conclusion would the WPA reading, Mr. MacLean’s employ- disciplining from agencies prohibit is not Because Mr. regulations nondisclosure violating ees for law” within prohibited “specifically from enforc- agencies thereby prevent WPA, we vacate meaning of regulations. ing such a deter- and remand decision Board’s *10 disclo- whether mination spite is mistaken. For protection. for WPA qualifies to sure free WPA, remains Congress of the example, it -remains to be determined
whether Mr. MacLean reasonably believed
that the content of his disclosure evidenced
a substantial danger public
health or safety.
VACATED AND REMANDED
WALLACH, Judge, Circuit concurring. presented evi- substantial
dence that he was not by per- motivated gain
sonal but the desire protect
public. He proof averred that he sought
direction from his supervisors before mak-
ing allegedly protected disclosures. While the,
I join the analysis result
majority opinion, I concur to emphasize alleged, facts proven, if allege
conduct at the core of the Whistleblower
Protection Act.
USHIP INTELLECTUAL
PROPERTIES, LLC,
Plaintiff-Appellant, STATES,
UNITED Defendant-Appellee,
International Business Machines
Corporation, Party Third
Defendant-Appellee.
No. 2012-5077.
United States Appeals, Court of
Federal Circuit.
8,May