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
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, Washington, D.C.; and Douglas N. Letter, Appellate Staff, Department

of Justice, Civil Division, Washington, D.C., for the Department 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 cancelled.” This message indicated to MacLean that there would be

no Federal Air Marshals on overnight flights from the time of

13000 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
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 director 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 Transportation 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 construction 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

MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13001
“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 relationship.’ ” 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)). Second, 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 challenge 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 finality.” 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, arbitrary and capricious, ultra vires, or unsupported by substantial

13002 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
evidence, see 5 U.S.C. § 706(2)(A)-(E), but we must also

accord deference to an agency’s interpretation of its own regulations, 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 application 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 security information . . . [s]pecific details of aviation security measures . . . 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 “deployment 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 determination. 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

MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13003
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 demonstrate 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 Whistleblower Protection Act, 5 U.S.C. § 2302, by punishing him for

making a protected disclosure. 

[4] The Whistleblower Protection Act forbids the government from taking a “personnel action” against an employee

who discloses information that the employee believes evidences: 

(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 public health or safety, 

if such disclosure is not specifically prohibited 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

1Our review is jurisdictionally limited to the scope of the TSA’s order.

Accordingly, we do not consider whether MacLean was correctly termi13004 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
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 relevant portion of the statute is a budgetary requirement that forbids the appropriation of funds “to implement or enforce the

agreements in Standard Forms 312 and 4414 of the Government 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 AntiGag 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. 

MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13005
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 Fourteenth 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 generally required for agency rulemaking, but not for adjudications.

See 5 U.S.C. § 553; Yesler Terrace Cmty. Council v. Cisneros, 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 Marshal. 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 “sensitive security information” regulations is evidence MacLean

disseminated the text message under a good faith belief the

13006 MACLEAN v. DEPARTMENT OF HOMELAND SECURITY
information did not qualify as “sensitive security information.” 

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 impermissible 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 created 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. 

MACLEAN v. DEPARTMENT OF HOMELAND SECURITY 13007