Lacson v. United States Department of Homeland Security

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.

12

2490, 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.