United States Court of Appeals for the Federal Circuit

This regulation did not take effect until after MacLean’s 2003 disclosure
(May 17, 2004 - 62 FR 28082), and did not govern his behavior when he made it.
The Agency’s 2006 removal was based solely on a conclusion that MacLean’s July
2003 disclosure violated this regulation. A30-31.
This was an impermissible retroactive adjudication. “Retroactivity is not
favored in the law.” Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208
(1988). “Congressional enactments and administrative rules will not be construed
to have retroactive effect unless their language requires this result.” No language in
the regulation mandates retroactive application. While MacLean raised this
argument A287-95, and the unissued regulation was the sole authority to terminate
MacLean, the AJ did not consider it.
MacLean renewed the retroactivity argument before the full Board, which
addressed the issue, noting that 49 CFR §1520.5(b)(8)(ii), while effective in 2005
when the proposal was issued, was not in 2003 when MacLean’s alleged
misconduct occurred. It unilaterally reasoned that the 2003 regulation was
“codified under a different number [49 CFR §1520.7 (j)] but was substantively the
same as the regulation quoted in the charge.” A6. The rule at 49 CFR §1520.7(j)
that the Board exclusively relied on specifies:
Except as otherwise provided in writing by the
Administrator as necessary in the interest of safety of
persons in transportation, the following information and
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