Lacson v. U.S. Dep't of Homeland Sec.

• Decision Date: 30 July 2013
• Docket Number: No. 11–1447.,11–1447.
• Citation: 726 F.3d 170
• Parties: Jose LACSON, Petitioner v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY and Transportation Security Administration, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

726 F.3d 170

Jose LACSON, Petitioner

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY and Transportation Security Administration, Respondents.

No. 11–1447.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 17, 2013.

Decided July 23, 2013.

Unsealed July 30, 2013.

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.

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. SeeThe 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 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.

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 Transportation for Security with respect to security duties and powers designated to be carried out by the Under Secretary ¹ ... 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....

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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, ––– U.S. ––––, 132 S.Ct. 2126, 2131, 183 L.Ed.2d 1 (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. See5 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, 108 S.Ct. 668, 98 L.Ed.2d 830 (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...