United States Court of Appeals for the Federal Circuit

STATEMENT OF THE CASE
Following a September 13, 2005 proposal, A27-29, the Agency terminated
MacLean, effective April 11, 2006, for an unauthorized disclosure of SSI. A30-32.
MacLean appealed to the MSPB. Prior to an initial decision, the Ninth Circuit
Court of Appeals reviewed whether the relevant information constituted SSI, since
it was not marked as required by Agency regulations. MacLean v. Dep’t of
Homeland Security, 543 F.3 rd 1145, 1152 (9 th Cir. 2008)(“MacLean”), held that the
information was SSI, but added he could contest his termination at the Board by
raising the lack of clarity of 2003 “sensitive security information” regulations to
prove he made the disclosure with a good faith belief the information did not
qualify as sensitive security information.
After the Ninth Circuit ruling but on interlocutory review prior to an Initial
Decision (“ID”), in MacLean v. Dep’t of Homeland Security, 112 M.S.P.R. 9
(2009)(“MacLean I”), the Board denied MacLean’s Whistleblower Protection Act
affirmative defense. It held that Agency SSI regulations could qualify to prohibit a
disclosure by “law,” thereby removing protection otherwise available under 5 USC
§2302(b)(8)(A). On May 12, 2010 the Administrative Judge (“AJ”) issued an ID
upholding the termination. A33-74.
Prior to the Board’s final decision on MacLean’s subsequent Petition for
Review, Representatives Dennis Kucinich and Carolyn Maloney filed an amicus
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