United States Court of Appeals for the Federal Circuit

The Ninth circuit’s MacLean decision does not dictate a different result.
There MacLean argued that Agency’s August 31, 2006 Order retroactively
designating the text message as SSI, id. at 1149, almost four months after his April
10, 2006 removal, was an impermissible retroactive agency adjudication, id. at
1152, and consequently a due process violation since he did not have notice and an
opportunity to be heard prior to the Order’s issuance. The Court rejected that
argument, because the Order only determined the text message’s SSI status, and
itself did not deprive MacLean of liberty or property interests in continued
employment. Nor was the Order itself an impermissible retroactive agency
adjudication, since it was based on the regulation effective at the time of
MacLean’s disclosure [1520.7(j)].
It is different for loss of liberty or property interests. The Agency’s Order
was issued after the deciding official terminated MacLean, and therefore is
irrelevant here. Further, termination directly deprived MacLean of his property
interest in continued employment. As the 9 th Circuit observed, MacLean was free
to contest his termination before the Board, and marshal any appropriate defense.
The Board erroneously violated MacLean’s due process right to defend himself
against the charge ultimately relied upon by itself, but not the Agency. 6
6 As discussed infra, the Board compounded this error by also upholding
termination on another basis not charged by the Agency: it would not have
mattered if MacLean’s disclosure did not include SSI, since it would have been
reckless anyway. A22, 24.
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