Lacson v. United States Department of Homeland Security , 726 F.3d 170 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2013 Decided July 23, 2013
Unsealed July 30, 2013
No. 11-1447
JOSE LACSON,
PETITIONER
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY AND
TRANSPORTATION SECURITY ADMINISTRATION,
RESPONDENTS
On Petition for Review of an Order Of
the Transportation Security Administration
Lawrence Berger argued the cause and filed the briefs for
petitioner.
Edward Himmelfarb, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the briefs were
Stuart F. Delery, Acting Assistant Attorney General, and
Mark B. Stern and Sharon Swingle, Attorneys.
Before: GARLAND, Chief Judge, BROWN, Circuit Judge, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
2
GARLAND, Chief Judge: Like many people, Jose Lacson
posted things online that he should not have. The problem is
that, unlike most people, Lacson was a Federal Air Marshal.
And the things he posted did not concern relationships gone
awry or parties that he should have avoided. Instead, he wrote
about the number of air marshals the Transportation Security
Administration (TSA) had hired in recent years, the locations of
their assignments, and the rates of attrition at various TSA field
offices. Upon discovering Lacson’s online pastime, TSA
determined that Lacson had disclosed Sensitive Security
Information and fired him.
Lacson asks us to set aside TSA’s order by invoking another
time-honored online tradition: he claims that he made it all up.
That is, he maintains that the facts he posted were not true and
hence did not really disclose sensitive information.
Unfortunately for Lacson, determining the facts is generally the
agency’s responsibility, not ours. And because substantial
evidence supports TSA’s determination that three of the four
postings at issue were true, we affirm the bulk of the agency’s
order. However, there is no evidence -- substantial or otherwise
-- to support TSA’s determination regarding the fourth posting.
We therefore set that determination aside.
I
Many transportation security failures came to light after the
9/11 terrorist attacks, including the revelation that the federal
government employed only 33 armed and trained Federal Air
Marshals. See THE 9/11 COMMISSION REPORT: FINAL REPORT
OF THE NAT’L COMM’N ON TERRORIST ATTACKS UPON THE
UNITED STATES, at 85 (2004). Congress responded by enacting
the Aviation and Transportation Security Act, which
dramatically expanded the scope of the Federal Air Marshal
program and placed it under the control of a new agency, the
3
TSA. Pub. L. No. 107-71, § 105(a), 115 Stat. 597, 606-07
(2001) (codified as amended at 49 U.S.C. § 44917). The
following year, Congress passed the Homeland Security Act of
2002, which (among many other things) enlarged TSA’s
authority to shield information from disclosure when it
determined the release of that information would be “detrimental
to the security of transportation.” Pub. L. No. 107-296,
§ 1601(b), 116 Stat. 2135, 2312 (codified as amended at 49
U.S.C. § 114(r)). TSA thereafter promulgated regulations
defining Sensitive Security Information (SSI) to include
“[i]nformation concerning the deployments, numbers and
operations of . . . Federal Air Marshals,” 49 C.F.R.
§ 1520.5(b)(8)(ii), and providing that any unauthorized release
of such information by federal employees could be grounds for
“appropriate personnel actions,” id. § 1520.17.
TSA hired Jose Lacson as a Federal Air Marshal in 2002.
He worked out of the agency’s Miami field office for the next
eight years. Starting in 2005, Lacson habitually posted on the
online forum Officer.com, using the screen name
“INTHEAIRCOP.” He openly identified himself on the forum
as a Federal Air Marshal and used a Federal Air Marshal badge
as his avatar. Some of his posts contained musings on life as an
air marshal, as well as banter with other forum participants.
Other posts discussed TSA’s hiring practices. In particular,
several posts written in 2010 purported to reveal the number of
air marshals TSA had hired in recent years, the locations of their
assignments, and the rates of attrition at various field offices.
TSA discovered these posts in June 2010 and traced them
to Lacson. Lacson admitted that he was indeed
“INTHEAIRCOP.” He swore, however, that many of his posts
-- including the detailed figures concerning air marshal staffing
-- were false. Lacson denied that he knew or even had access to
the true numbers, locations, or attrition rates of his colleagues.
4
TSA agents conducted a follow-up investigation and
concluded that much of the staffing information that Lacson had
disclosed was, in fact, true. Lacson’s supervisor subsequently
proposed that Lacson be terminated. He listed three grounds:
that Lacson had released SSI; that Lacson had inappropriately
used government computers to write the posts; and that Lacson
had repeatedly made inappropriate statements to other
Officer.com forum participants. After Lacson was given an
opportunity to respond, the agency made Lacson’s termination
final on May 31, 2011.
Lacson lodged two appeals. He appealed his termination to
the Merit Systems Protection Board (MSPB), and he appealed
the determination that he had released SSI to the Chief of TSA’s
SSI Program. The Chief reached a decision first, issuing an
order that affirmed the conclusion that four of Lacson’s posts
contained SSI as defined in 49 C.F.R. § 1520.5(b)(8)(ii). See
Final Order on Sensitive Security Information in connection
with Lacson v. Dep’t of Homeland Sec., No. AT-0752-11-0765-
I-1, at 1-2 (T.S.A. Sept. 20, 2011) (J.A. 4-5) (“SSI Order”).
Lacson then sought a dismissal without prejudice of his MSPB
appeal so that he could seek review of the SSI Order in federal
court. The MSPB granted his request, see Lacson v. Dep’t of
Homeland Sec., No. AT-0752-11-0765-I-1, at 2-3 (M.S.P.B.
Sept. 23, 2011) (J.A. 42-43), and Lacson filed a petition for
review of the SSI Order in this court, pursuant to 49 U.S.C.
§ 46110.
II
The parties agree that we have jurisdiction over this appeal.
In support, they cite 49 U.S.C. § 46110, which provides:
(a) . . . [A] person disclosing a substantial interest in an
order issued by . . . the Under Secretary of
5
Transportation for Security with respect to security
duties and powers designated to be carried out by the
Under Secretary1 . . . in whole or in part under . . .
subsection (l) or [(r)] of section 1142 may apply for
review of the order by filing a petition for review in the
United States Court of Appeals for the District of
Columbia Circuit or in the court of appeals of the
United States for the circuit in which the person resides
or has its principal place of business. . . .
...
(c) When the petition is sent to the . . . Under
Secretary, . . . the court has exclusive jurisdiction to
affirm, amend, modify, or set aside any part of the
order . . . .
1
The TSA Administrator is the Under Secretary of Transportation
for Security, see 49 U.S.C. § 114(b)(1), and has delegated the
authority to issue certain 49 U.S.C. § 114(r) orders to the Chief of
TSA’s SSI Program, see SSI Order at 1.
2
The unaltered text of § 46110(a) actually refers to orders
concerning duties or powers under “subsection (l) or (s) of section
114.” 49 U.S.C. § 46110(a) (emphasis added). Since those words
were added to § 46110(a) in 2003, see Vision 100 -- Century of
Aviation Reauthorization Act, Pub. L. No. 108-176, § 228, 117 Stat.
2490, 2532 (2003), subsection (s) of section 114 has been renamed
subsection (r) due to the deletion of a preceding subsection, see
Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 568,
121 Stat. 1844, 2092 (2007). Because there is no indication that
Congress intended this technical change to affect the scope of
§ 46110, we agree with both parties that the failure to replace the
words “subsection . . . (s)” with “subsection . . . (r)” was a scrivener’s
error. Cf. Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1336-37 (D.C.
Cir. 2013); Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040-44
(D.C. Cir. 2001).
6
Id. § 46110.
As the parties correctly observe, TSA issued the SSI Order
by invoking its security duties and powers under 49 U.S.C.
§ 114(r), one of the subsections specifically referenced in
§ 46110(a). See SSI Order at 1. And Lacson clearly
“disclos[es] a substantial interest” in the SSI Order because it
served as a predicate for his termination. 49 U.S.C. § 46110(a).
Thus, both Lacson and TSA conclude that § 46110 gives us
jurisdiction over this petition for review. See Lacson Supp’l Br.
5; TSA Supp’l Br. 2-3.
Because the question relates to our jurisdiction to hear the
case, we are obligated to conduct an independent inquiry,
notwithstanding the parties’ agreement. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94-95 (1998).3 Even so, the
logic of their position is persuasive, and in the end we agree
with it. But the question is complicated by the fact that the
MSPB and the United States Court of Appeals for the Federal
Circuit indisputably have exclusive jurisdiction to review TSA’s
decision to terminate Lacson. 49 U.S.C. §§ 114(n), 40122(g)(3),
(h); 28 U.S.C. § 1295(a)(9); see Elgin v. Dep’t of Treasury, 132
S. Ct. 2126, 2131 (2012).
As aficionados of our MSPB jurisprudence will recognize,
federal employees are ordinarily not permitted to split a
challenge to an adverse personnel action between the MSPB and
a federal district court or regional court of appeals. Rather, the
Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. §§ 1101 et
seq., generally requires employees to bring such claims first in
an action before the MSPB and thereafter to the Federal Circuit.
3
At our request, both parties filed supplemental briefs on this
question prior to oral argument.
7
See 5 U.S.C. §§ 1204, 7701, 7703(b)(1). As the Supreme Court
explained in its foundational opinion on the subject, a “structural
element [of the CSRA] is the primacy of the MSPB for
administrative resolution of disputes over adverse personnel
action, and the primacy of the United States Court of Appeals
for the Federal Circuit for judicial review.” United States v.
Fausto, 484 U.S. 439, 449 (1988) (citations omitted).
We recognize that Lacson is not invoking our jurisdiction
to review the adverse personnel action against him (i.e., his
termination), but rather the order finding that his posts contained
Sensitive Security Information. Yet, a number of cases in recent
years have extended the logic of Fausto beyond challenges to
adverse personnel actions themselves. In Fornaro v. James, a
putative class of retired law enforcement officers asked the U.S.
District Court for the District of Columbia to review, under the
Administrative Procedure Act (APA), an Office of Personnel
Management (OPM) policy that had resulted in reduced annuity
payments to retirees. 416 F.3d 63, 65-66 (D.C. Cir. 2005).4 The
plaintiffs conceded that the MSPB and the Federal Circuit had
exclusive jurisdiction to review their individual benefits
determinations, but they argued that this did not preclude their
bringing “what they contend[ed was] a collateral, systemwide
challenge to OPM policy” by employing the APA’s waiver of
4
The benefits determination at issue in Fornaro was technically
subject to the Civil Service Retirement Act, 5 U.S.C. §§ 8331 et seq.,
a statute that predates the Civil Service Reform Act by several
decades. See Lindahl v. OPM, 470 U.S. 768, 771-74 (1985)
(recounting history). But the Civil Service Reform Act made benefits
determinations under the Retirement Act subject to essentially the
same regime of MSPB exclusivity as personnel actions, see id. at 773-
74, and we have not distinguished between those statutes for
jurisdictional purposes, see Fornaro, 416 F.3d at 66-67 (discussing
Retirement Act and CSRA cases interchangeably, and relying on
Fausto).
8
sovereign immunity. Id. at 67; see 5 U.S.C. § 702. We
disagreed. As we explained, exercising jurisdiction over the
plaintiffs’ systemwide challenge via the APA “would plainly
undermine the whole point of channeling review of benefits
determinations to the MSPB,” as it would permit the district
court (and this court on appeal), rather than the MSPB, to
“decide the merits of the plaintiffs’ claims for benefits.” Id. at
68. Accordingly, we affirmed dismissal of the action for lack of
jurisdiction.
We repeated this approach in Nyunt v. Chairman,
Broadcasting Board of Governors, 589 F.3d 445 (D.C. Cir.
2009). There, a prospective employee asked the district court to
invalidate, under the APA, an agency policy that had resulted in
his non-selection for a position on the Broadcasting Board of
Governors, a personnel action that could normally be challenged
only through the CSRA. See id. at 447-48. Just as in Fornaro,
we rejected the claim. A prospective employee may not
“‘circumvent’” the CSRA process by bringing an APA
challenge in district court, we said, whether in the form of “a
‘systemwide challenge’ to an agency policy interpreting a
statute” or as a challenge to “the implementation of such a
policy in a particular case.” Id. at 449 (quoting Grosdidier v.
Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C.
Cir. 2009), and Fornaro, 416 F.3d at 67). Quoting yet another
of our cases in this line, we repeated that, “‘except where
Congress specifies otherwise, the Civil Service Reform Act is
the proper statutory vehicle for covered federal employees to
challenge personnel actions by their employers.’” Nyunt, 589
F.3d at 448 (quoting Grosdidier, 560 F.3d at 495-96); see
Grosdidier, 560 F.3d at 497 (“As our Court has emphasized, the
CSRA is comprehensive and exclusive. Federal employees may
not circumvent the Act’s requirements and limitations by
resorting to the catchall APA to challenge agency employment
actions.”).
9
Two Terms ago, the Supreme Court echoed and amplified
the approach taken in these cases. In Elgin v. Department of
Treasury, discharged federal employees sought to bring a facial
constitutional challenge against the statute that had authorized
their removal. 132 S. Ct. at 2131-32. Reasoning that their
challenge was “‘wholly collateral’ to the CSRA scheme” and
had “‘nothing to do with the types of day-to-day personnel
actions adjudicated by the MSPB,’” the plaintiffs argued that
they could sue in federal district court under the general grant of
federal-question jurisdiction in 28 U.S.C. § 1331. Elgin, 132 S.
Ct. at 2139; see id. at 2131. The Court was unconvinced. It
explained that the plaintiffs’ constitutional challenge was
nothing more than “the vehicle by which they seek to reverse the
removal decisions.” Id. at 2139. As such, their exclusive
avenue to judicial review was through the MSPB to the Federal
Circuit. Id. at 2134, 2140.
Lacson’s petition for review has much in common with
these failed lawsuits. Like the agency policies at issue in
Fornaro and Nyunt, and the statute at issue in Elgin, the SSI
Order -- which held that the facts Lacson disclosed constituted
Sensitive Security Information -- supplies much of the legal
basis for TSA’s adverse personnel action against Lacson. Like
the claimants in those cases, Lacson asks us to overturn the SSI
Order in order to reverse his termination. See Lacson Br. at 1.
And as in those suits, a favorable decision would effectively
decide much of the merits of Lacson’s claim before the MSPB.
Lacson and the government distinguish this case from
Fausto, Fornaro, Nyunt, and Elgin primarily on the ground that
49 U.S.C. § 46110 grants us jurisdiction over Lacson’s petition.
But the fact that Lacson can invoke a statutory basis for
jurisdiction is not itself a distinction. Just as Lacson invokes
§ 46110, the claimants in Fornaro and Nyunt invoked a review
provision of the APA, 5 U.S.C. § 702, coupled with the general
10
federal-question jurisdictional provision, 28 U.S.C. § 1331. The
plaintiffs in Elgin similarly invoked § 1331. And the plaintiff in
Fausto invoked “the Claims Court review traditionally available
under the Tucker Act, 28 U.S.C. § 1491, based on the Back Pay
Act,” 5 U.S.C. § 5596. Fausto, 484 U.S. at 443.
To draw a persuasive distinction, then, there must be
something special about § 46110’s grant of jurisdiction. And we
think there is. Indeed, there are several features that make
§ 46110 different and authorize us to assume jurisdiction over
Lacson’s petition.
First, the cases in which appeals were confined to the
MSPB and Federal Circuit involved attempts to use quite
general statutory review provisions to reach other federal courts.
As the Supreme Court explained in Elgin, the CSRA establishes
an “elaborate” and “painstaking[ly] detail[ed]” scheme for
bringing employment actions before the MSPB and the Federal
Circuit. 132 S. Ct. at 2133-34. And as this court and the
Supreme Court have concluded, it is unlikely that Congress
intended to “‘allow an employee to circumvent th[e] detailed
scheme governing federal employer-employee relations by suing
under the more general APA,’” Fornaro, 416 F.3d at 67(quoting Harrison v. Bowen, 815 F.2d 1505, 1516 n.25 (D.C.
Cir. 1987)) (emphasis added), or “under the general grant of
federal-question jurisdiction in 28 U.S.C. § 1331,” Elgin, 132 S.
Ct. at 2131 (emphasis added); see id. at 2134.
Section 46110, by contrast, does not suffer from the defect
of generality. It is not a “catchall” like the APA. Grosdidier,
560 F.3d at 497. Rather, it specifically addresses the type of
order at issue here. It gives this court (and the other regional
courts of appeals) authority to review orders issued “in whole or
in part under . . . subsection . . . [(r)] of section 114.” 49 U.S.C.
§ 46110(a); see id. § 46110(c). Moreover, because the statute is
11
so narrowly drawn, we need not worry that hearing Lacson’s
case would permit employees to “circumvent the [CSRA’s]
requirements and limitations” in a vast number of cases that
would otherwise go to the MSPB. Grosdidier, 560 F.3d at 497;
see Elgin, 132 S. Ct. at 2135; Fausto, 484 U.S. at 449-51;
Fornaro, 416 F.3d at 68-69. The rule in this Circuit is that
“except where Congress specifies otherwise, the Civil Service
Reform Act is the proper statutory vehicle for covered federal
employees to challenge personnel actions by their employers.”
Nyunt, 589 F.3d at 448 (quoting Grosdidier, 560 F.3d at 495-69)
(emphasis added). Section 46110 falls comfortably within that
exception. (And, of course, Lacson is not challenging the
personnel action in this court.)
Second, it is significant that § 46110’s grant of jurisdiction
is express, for “[w]hen Congress wants to preserve remedies
outside the CSRA, it does so expressly.” Nyunt, 589 F.3d at
448; see Elgin, 132 S. Ct. at 2134. In Fausto, the Supreme
Court refused to recognize independent federal court jurisdiction
to hear employee claims under the Back Pay Act in part because
that statute said nothing about jurisdiction. See 484 U.S. at 453-
54. Lower courts had merely inferred such jurisdiction through
“implication” and “judicial interpretation,” and implication was
not enough to overcome the “comprehensive and integrated
review scheme of the CSRA.” Id. Here, however, it is clear that
Congress intended § 46110 to be an independent source of
federal court jurisdiction. The section uses the word
“jurisdiction,” 49 U.S.C. § 46110(c), and has for decades been
understood as a jurisdictional grant, see, e.g., City of Rochester
v. Bond, 603 F.2d 927 (D.C. Cir. 1979).
Finally, Congress gave us jurisdiction over § 114(r) orders
in 2003, a full 25 years after the CSRA was enacted and 15
years after Fausto. See Vision 100 -- Century of Aviation
Reauthorization Act, Pub. L. No. 108-176, § 228, 117 Stat.
122490, 2532 (2003). It is thus reasonable to assume Congress
knew that this later grant of jurisdiction would affect those
earlier authorities. By contrast, the APA, § 1331, and the Back
Pay Act were all enacted long before the CSRA. And as the
Court said in Fausto, the proposition that “pre-CSRA remedies
. . . were not meant to be affected by the [CSRA is] inherently
implausible.” 484 U.S. at 451 (emphasis added).5
For these reasons, we agree with the parties that a
straightforward construction of the text of § 46110 is the correct
one. Accordingly, we find that we have jurisdiction to review
the SSI Order.
III
Turning to the merits, the parties’ comity regarding our
jurisdiction yields to discord extending even to which question
we need to answer to resolve this case. Lacson says that the
only issue before us is whether his posts contained accurate
information. He concedes that, if the staffing figures he
disclosed were accurate, they would constitute SSI. See Oral
Arg. Recording at 2:25-35. His only defense is that he made the
figures up, and that they were false. See id. at 2:35-40; Lacson
Br. 9, 14-15.
TSA, by contrast, maintains that it does not matter whether
the figures in Lacson’s posts were true or false. In its brief, TSA
argues that even inaccurate statements may contain SSI if they
are merely “technically” inaccurate and “reveal a concept or
general state of affairs that should be protected in the interest of
transportation security.” TSA Br. 16. At oral argument, the
agency made an even broader claim. There it argued that even
5
This is not to suggest that a jurisdictional grant like § 46110
must have been enacted post-CSRA to avoid its scope.
13
a completely false statement -- such as the assertion that a
particular flight has no Federal Air Marshals on it when it
actually has 100 -- can constitute SSI if it would harm
transportation security. Oral Arg. Recording at 30:55 - 31:50.
In the administrative proceedings under review, TSA made
neither the broad nor the narrow version of the false information
argument. See id. at 31:50 - 32:25 (acknowledgment by TSA
counsel). It said only that the figures Lacson disclosed were SSI
because they were both security sensitive and true. See SSI
Order at 1; Notice of Proposed Removal at 6 (Feb. 11, 2011)
(J.A. 23) (concluding that Lacson’s claim that “the statements
[he] posted were not true . . . lack[s] credibility, as the evidence
reflects otherwise.”).6 Because we can sustain an agency action
only on a ground upon which the agency itself relied, see SEC
v. Chenery Corp., 318 U.S. 80, 95 (1943), the contention that
information can constitute SSI even if it is untrue is not before
us. Rather, we can sustain TSA’s decision that Lacson’s posts
were SSI only if (under our deferential standard of review) they
were true, as the agency said they were.
TSA found that four of Lacson’s posts contained SSI. See
SSI Order at 1; Notice of Decision on Proposed Removal, at 1-2,
5 (May 31, 2011) (J.A. 29-30, 33) (listing posts). The agency
points to two pieces of evidence that it says support the finding
that the information in those four posts was accurate. Under the
governing statute, “[f]indings of fact by the [agency], if
6
The only TSA official who even addressed the issue below
accepted the narrow version but rejected the broad version of this
argument. See Email from R. Metzler to P. Erdman, at 1 (July 23,
2010) (J.A. 13) (suggesting that information can be SSI if it is “close
enough to the real number to be detrimental,” but noting that “[i]t has
been the position of the SSI Branch that information known to be false
is not SSI”).
14
supported by substantial evidence, are conclusive.” 49 U.S.C.
§ 46110(c). Accordingly, the only question before us is whether
the two documents relied on by the agency contain substantial
evidence that the four posts were accurate.
A
TSA defends the veracity of three of Lacson’s four posts by
citing a November 23, 2010 memorandum by John Bolton,
Assistant Special Agent in Charge (ASAC) of TSA’s Office of
Professional Accountability. See Mem. from J. Bolton to W.
Benner (Nov. 23, 2010) (J.A. 15).7
According to Bolton, he provided two of those posts to Kent
Jeffries, Special Agent in Charge of TSA’s Manpower
Operations. Id. “[A]s the current manager of the [Federal Air
Marshals] hiring program,” Bolton explained, Jeffries could
“attest to the accuracy” of Lacson’s posts “given his knowledge
of the subject matter” of those posts, which involved hiring at
the national level. Id. As reported by Bolton, Jeffries “offered
his expert opinion” that the postings were “factually true.” Id.As for the third post, Bolton relied on a statement by James
Bauer, Special Agent in Charge of TSA’s Miami Field Office,
who confirmed that the attrition rate that Lacson posted for that
office was also accurate. Id.; see TSA Br. 8-9.
Lacson argues that Bolton’s memorandum does not
constitute substantial evidence because the statements of Jeffries
and Bauer are hearsay. But there is no absolute bar against the
admission of hearsay evidence in agency proceedings. See
Richardson v. Perales, 402 U.S. 389, 410 (1971). To the
7
These three posts are identified as Post 2282, Post 3194, and “a
post undated.” See Bolton Mem.; Notice of Decision on Proposed
Removal at 1-2, 5.
15
contrary, “it is well-settled not only that hearsay can be
considered by an administrative agency but that it can constitute
substantial evidence.” Echostar Commc’ns Corp. v. FCC, 292
F.3d 749, 753 (D.C. Cir. 2002); see, e.g., Richardson, 402 U.S.
at 402-10; Crawford v. U.S. Dep’t of Agric., 50 F.3d 46, 49
(D.C. Cir. 1995); cf. 5 U.S.C. § 556(d). “[A]dministrative
agencies may consider hearsay evidence as long as it ‘bear[s]
satisfactory indicia of reliability,’ Crawford, 50 F.3d at 49; and
hearsay can constitute substantial evidence if it is reliable and
trustworthy.” Echostar, 292 F.3d at 753.8
The hearsay statements in the Bolton memorandum are not
materially different from the ones we accepted as substantial
evidence in Honeywell International, Inc. v. EPA, 372 F.3d 441(D.C. Cir. 2004). In that case, we concluded that EPA had an
adequate basis for its determination that a particular portion of
the Hudson River contained a fishery, despite the fact that its
only evidence was two hearsay statements relayed to the agency
by its contractor. Id. at 447. According to the contractor, a
biologist in the New Jersey Department of Environmental
Protection’s Bureau of Marine Fisheries told him by telephone
that the biologist had recorded instances of fishing activity near
the site of the alleged fishery. Id. The contractor also reported
that he spoke with a representative of a Superfund team who
told him that he had personally observed fishing activity in the
area. Id.In Honeywell, we concluded that the two statements
constituted substantial evidence supporting EPA’s
determination, notwithstanding that they were hearsay, and
8
See Richardson, 402 U.S. at 402-10; Hoska v. U.S. Dep’t of the
Army, 677 F.2d 131, 138-39 (D.C. Cir. 1982); Johnson v. United
States, 628 F.2d 187, 190-91 (D.C. Cir. 1980); Klinestiver v. DEA,
606 F.2d 1128, 1129-30 (D.C. Cir. 1979).
16
despite the fact that EPA had failed to verify them by obtaining
the underlying records. Id. We held that EPA was entitled to
rely on the statements by the biologist and Superfund team
representative because, given their responsibilities, they “were
uniquely in a position to know” the relevant information. Id.(quoting Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 737
F.2d 1095, 1125 (D.C. Cir. 1984)). Moreover, the petitioner had
“point[ed] to nothing suggesting that the information” either one
had provided “was unreliable.” Id.In this case, TSA likewise relies upon statements made by
TSA officials who, given their responsibilities, were clearly in
a position to know both the national (Jeffries) and Miami
(Bauer) staffing data with respect to Federal Air Marshals. Nor
has Lacson given us any reason to doubt either individual’s
reliability or integrity. That is enough for us to affirm the
agency’s decision on the authority of Honeywell.
But it is barely enough. Although our standard of review is
relatively forgiving, in the future TSA would be well-advised to
provide more direct evidence of the facts at issue, or affidavits
by officials who possess personal knowledge of the facts, or
more expansive explanations of the manner in which the
officials confirmed those facts. If TSA wants to be confident
that its orders will survive judicial scrutiny, it should have that
kind of evidence in its decisional records.
B
The Bolton memorandum does not address Lacson’s fourth
post, identified as Post 3261, at all. For the veracity of that post,
which mentioned certain hiring information, TSA relies
exclusively on a memorandum written by Robert Metzler, a
Senior Analyst in TSA’s SSI program. See TSA Br. 14 (citing
Mem. from R. Metzler to P. Algozzini, at 2 (Dec. 15, 2010)
17
(J.A. 17)). In that memorandum, Metzler wrote that he had
consulted three sources to determine whether Post 3261 (among
several others) contained SSI: (1) the text of 49 C.F.R.
§ 1520.5(b)(8)(ii); (2) a TSA “SSI Identification Guide”; and (3)
“ASAC Bolton’s 11/23/10 memorandum,” which Metzler said
he “relie[d] upon . . . to identify that information which is
approximately accurate.” Metzler Mem. at 2.
The problem for TSA is that Metzler’s memorandum
provides no evidence that Post 3261 was true. The first two
documents upon which Metzler says he relied are regulatory
texts that contain no information about the content of Lacson’s
posts. The third document is Bolton’s memorandum. And
although that memorandum does contain factual information
about other posts, TSA concedes that it does not address Post
3261 at all. See Oral Arg. Recording at 33:53-57. The
government speculates that Metzler may have had some
independent knowledge of TSA hiring figures. See id. at
37:10-20. But there is nothing in Metzler’s memorandum to
support such speculation. To the contrary, the best reading of
Metzler’s memorandum is that he was merely confirming that
Post 3261 contained the kind of information that would
constitute SSI if it were true.
Accordingly, there is neither substantial evidence, nor any
evidence, to support TSA’s determination that Lacson’s Post
3261 contained Sensitive Security Information.
IV
For the foregoing reasons, we affirm the SSI Order with
respect to three of Lacson’s posts, but set it aside with respect to
Post 3261.
So ordered.