Lacson v. DHS: DC Circuit retroactive "Sensitive Security Information" appeal

7/30/2019 Lacson v. DHS: DC Circuit retroactive "Sensitive Security Information" appeal

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PUBLIC COPY - SEALED MATERIAL DELETED

ORAL ARGUMENT NOT YET SCHEDULED

No. 11-1447IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________

JOSE LACSON,

Petitioner,

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

and TRANSPORTATION SECURITY ADMINISTRATION,

Respondents.

_________________________________

ON PETITION FOR REVIEW FROM AN ORDER

OF THE TRANSPORTATION SECURITY ADMINISTRATION

_________________________________

REPLY BRIEF FOR PETITIONER

__________________________________

LAWRENCE BERGER

Mahon & Berger, Esqs.

70 Glen Street, Suite 280

Glen Cove, New York 11542

516-671-2688

USCA Case #11-1447 Document #1396124 Filed: 09/24/2012 Page 1 of 23


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TABLE OF CONTENTS

Page

I. Table of Authorities.........................................................................ii

II. Glossary..........................................................................................iii

III. Summary of the Argument..............................................................1

IV. Argument.........................................................................................3

V. Conclusion and Relief...................................................................17

Certificate of Compliance

Certificate of Service

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TABLE OF AUTHORITIES

Cases Page(s)

*Honeywell Intl v. EPA,372 F.3d 441 (D.C. Cir. 2004).....................................................10,11

MacLean v. Dept. of Homeland Security

543 F.3d 1145 (9 Cir. 2008).......................................................6,7th

National Assn of Regulatory Util, Comm. v. FCC

737 F.2d 1095 (D.C. Cir. 1984)..................................................11

Statutes and Rules

49 U.S.C. Section 114(r)(1)..................................................................5

49 C.F.R. 1520.5(a)............................................................................3,5,17

49 C.F.R. 1520.5(a)(3).........................................................................4

49 C.F.R. 1520.5(a)(b).........................................................................4

49 C.F.R. 1520.5(b)(8).........................................................................5

49 C.F.R. 1520(b)(8)(ii)....................................................................3,4,5,17

49 C.F.R. 1520.5(c).............................................................................5,17

*Authorities upon which we chiefly rely are marked with an asterisk.

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GLOSSARY

Abbreviation Definition

ASAC Assistant Special Agent in Charge

FAM Federal Air Marshal

SAC Special Agent in Charge

SSI Sensitive Security Information

TSA Transportation Security Administration

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SUMMARY OF THE ARGUMENT

Whether the four posts at issue in this proceeding (posts 2282, 3194, 3261

and an undated post) are SSI hinges entirely on the truth or falsity of the content of

the posts. An Agency official (Mr. Metzler, Senior SSI Analyst) concedes that

false information cannot constitute SSI. Lacson declared under oath that the posts

were made up by him and are fictitious. The Agency counters by asserting that

substantial evidence supports the accuracy or approximate accuracy of the posts.

The primary evidence relied upon by the Agency to prove accuracy of the posts is

the hearsay (double hearsay) attestations of two Special Agents in Charge

(SAC), that is, Manpower Operations SAC Jeffries and Miami Field Office SAC

Bauer. Neither hearsay statement manifests sufficient reliability to meet the

substantial evidence standard.

A key indicia of reliability of a hearsay statement is whether the declarant

provides a statement under oath or has first-hand knowledge of the facts, which

are represented by the declarant. Both the statements of SACs Jeffries and Bauer

are presented without context, provide no information as to whether the statements

are based on first-hand knowledge or are mere speculation, nor are declared under

oath. Consequently, the probative value of the statements are deficient and the

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Court has no assurance of reliability of those statements. Further, the statement of

SAC Bauer, which is confined only to confirming as accurate an attrition rate

expressed as a percentage of workforce (post 3194), cannot by Agency definition

be SSI, per the representation of Mr. Metzler. A third witness, Mr. Metzler,

expressly relies strictly upon the unreliable opinions of SACs Jeffries and Bauer

for his claim that the posts were accurate.

The record in this proceeding does not reveal substantial evidence in

support the Agency claim that the four posts were SSI.

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I. ARGUMENT

The Agency, in its Brief for the Respondents (Agency Brief) argues that

substantial evidence supports that Lacsons four posts contained SSI. The Agency

supports its claim by proffering three separate arguments:

(1) the determination by the Agency that the four posts are SSI are self-

evidentially correct, that is, are presumably SSI on their face in accordance with

the plain meaning of 49 C.F.R. Section 1520.5(a) and (b)(8)(ii); (Agency Brief,

pp. 12-13); and (2) if not self-evidently correct, the four posts were confirmed by

three Agency officials as being accurate thereby constituting SSI (Agency Brief,

pp. 13-15); and

(3) even if the postings were inaccurate, the posts can still be deemed

appropriately to be SSI because they reveal a concept or general state of affairs

that should be protected in the interest of transportation security. (Agency Brief,

pp. 15-17.)

Each of these Agency arguments will be addressedseriatembelow.

A) The Agency claim that its determination that the four posts contain

sensitive information falling within an enumerated category of SSI is

self-evidently correct.

The Agency apparently argues that the four posts contain SSI on their face,

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that is, are self-evident without any reference to any source external to the text of

the relevant rule (49 C.F.R. Section 1520.5(a)(b)), such as the interpretative

opinions of Agency officials. SSI is defined broadly as information obtained or

developed in the conduct of security activity including research and development,

the disclosure of which the TSA has determined would...be detrimental to the

security of transportation. 49 C.F.R. Section 1520.5(a)(3). Section

1520.5(b)(8)(ii) designates as SSI deployments, numbers, and operations

of...federal air marshals. Information falling within this designation is

automatically considered SSI without further action from the TSA. The

regulations plain language, without more, does not support a reading that the four

posts contained SSI. While it is true, as the Agency argues in its Brief, that the

subject posts purportedly referenced the number, deployment, and attrition rate of

federal air marshals hired at various times and deployed at various duty stations

(Agency Brief, p. 13), an analysis of whether the posts are actually reached by the

plain language of the regulation does not end there. Under no circumstances can

information be considered SSI if it does not meet the criteria set forth at Section

1520.5(a). 49 C.F.R. Section 1520.5(a). See 49 C.F.R. Section 1520.5(c). The

criteria confining SSI is to information obtained or developed in the conduct of

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security activities under the authority of the Agency is a statutory mandate and

cannot be ignored. See 49 U.S.C. Section 114(r)(1). The text of each post does

not self-evidently reveal that information was obtained or developed in the

conduct of security activities. The source of the content of the posts is not

apparent on the face of the text of the posts, and a reader of the posts, without

external aid, could not determine on the face of the posts whether the content was

extracted from actual security activities of the Agency or rooted in gossip, rumor,

or subjective opinion. Nor do the posts reveal on their face details of aviation

transportation security measures applied directly either by the federal

government or another person. (49 C.F.R. Section 1520.5(b)(8)). Whether, in

fact, the information in the posts were obtained or developed from actual

security activities or applied by the Agency to its operations, facts not apparent

on the face of the posts, requires the aid of an external source such as a witness

who can determine the accuracy of the posts.

Lacson, in his sworn declaration to the Agency, (Rec. A6, 2 paragraph)nd

asserted that the content of each of the four posts were made up by him, not based

on fact, and were fictitious, not obtained or developed from actual security

operations. The Agency concedes that fictitious information cannot constitute

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SSI. According to an Agency official, [i]t has been the position of the SSI

branch that information known to be false is not SSI...[t]he regulation does not

indicate that false information is included. See Statement of Robert Metzler,

Senior Analyst, SSI Program, Rec. A13, first full paragraph.

The Agency citesMacLean v. Dept. of Homeland Security, 543 F.3d 1145,

1149 (9 Cir. 2008) which upheld the Agencys SSI determination under theth

unique facts of that case, as support for its claim here that the four posts contained

SSI information. However, inMacLean, it was undisputed that the information

disclosed to the public by the federal air marshal there, was obtained directly from

a text distributed by the Agency dealing with an actual security operation.

MacLean, supra at pp. 1148-1149. Based upon the Agencys own concession that

false information is not SSI, the Agency argument hinges entirely upon whether

the Agency can demonstrate by substantial evidence that the information

contained in the posts were accurate or approximately accurate (Metzler

Statement, first paragraph at Rec. A17); close enough to the real number to be

detrimental (Id. at Rec. A13, second paragraph) or close enough to reality (Id.

at Rec. A13, third paragraph) to call it SSI. The Agency has not met its burden

here.

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MATERIAL UNDER SEAL DELETED

B) The Agencys claim that Lacsons challenge to the accuracy of

his postings does not undermine the Agencys determination that

they contain SSI.

The Agency first argues that Agency officials confirm the accuracy of the

statements in Lacsons postings in the course of determining that they contain

SSI. See Agency Brief, at p. 13. The Agency alludes to three separate

evidentiary sources to support its claim that the posts are accurate.:

1. Special Agent in Charge Jeffries of Manpower Operations (SAC

Jeffries) confirmed the accuracy of two of Lacsons posts that there would be

(post 2282), and that the Agency will hire

(undated post). Agency Brief, p.14, also Rec. A15;

2. Special Agent in Charge of the Miami Field office Bauer (SAC

Bauer) confirmed that Lacsons statement about a attrition rate in Miami was

accurate (post 3194). Agency Brief, p. 14, also Rec. A15; and

3. Another TSA official (Metzler) confirmed the accuracy of Lacsons

statement

that (Post

3261). Agency Brief, p. 14, also Rec. A17.

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part of SAC Jeffries as to how he became knowledgeable that the two posts were

factually true, Rec. A15, second paragraph, it would appear that this Court is

faced with nothing more than a speculative statement which does not meet

reliability standard for substantial evidence.

2. SAC Bauer

The Agency asserts that SAC Bauer has confirmed the attrition rate

in MIA. See Rec. A15 and Agency Brief at p. 15. This attrition statement is

embedded in a longer statement at post 3194, dated May 21, 2010. The entire post

is set forth as follows:

Of this entire statement, the only portion the Agency asserts is accurately

confirmed by SAC Bauer is the attrition rate in MIA. Nothing else in that

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post is asserted as accurate by SAC Bauer. Nor does SAC Jeffries address this

post at all. SAC Bauers statement, like SAC Jeffries statement, is a double

hearsay statement without any indicia of reliability. There is no evidence in the

record indicating how SAC Bauer came to confirm the attrition rate. Did

he inspect records of the office? Does he have anecdotal knowledge? Is the SAC

merely speculating or guessing based on some intuitive sense? There is no way to

assess the reliability of SAC Bauers so-called confirmation. Further, because

SAC Bauers statement is double hearsay, there is nothing in the record indicating

whether ASAC Boltons report of what SAC Bauer allegedly uttered to him is

accurate. For instance, there is no indication of when ASAC Bolton met SAC

Bauer, whether in person, by telephone, or by virtue of some of the

communication. There is no indication that even if there was an attrition rate

that it occurred in 2010, which was the relevant time period of the subject

post, May 21, 2010. There are no notes independently memorializing the

statement SAC Bauer made to ASAC Bolton and no indication that ASAC Bolton

is accurately reporting what SAC Bauer actually said - that is, his precise words.

Therefore, SAC Bauers statement lacks assurance of reliability sufficient to allow

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his hearsay statement to meet the substantial evidence standard.

Additionally, the Agency itself concedes that utterances regarding attrition

rates do not constitute SSI. Mr. Metzler himself notes in his memorandum dated

July 23, 2010 at Rec. A13, that disclosing an attrition rate (last paragraph, #2) that

is, percentages as they relate to the FAM workforce are not SSI. The statement

by Lacson that he observed is an attrition rate

which is a percentage as it relates to the FAM workforce, and consequently not

SSI. SAC Bauers confirmation of the partial content of Lacsons post, even if it

were true, does not constitute SSI. There is no other witness who attests to the

veracity of any other information in that post and therefore there is no evidence at

all to support its veracity.

3. Mr. Metzler

The Agency relies upon Mr. Metzlers statement at Rec. A17 with respect to

the four posts.

Mr. Metzler himself indicates that if the information contained in the four

separate posts is false, it is not SSI. Rec. A13, first sentence. According to Mr.

Metzler, the only way the posts could be SSI is if they were accurate or

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approximately accurate. Rec. A17. Mr. Metzler himself has already indicated

that the portion of the post (3194) by Lacson indicating attrition rate is not

by definition SSI, even if true. With respect to the balance of the posts, as well as

the balance of the information contained in Post 3194, Mr. Metzler does not

profess to have firsthand knowledge of the accuracy of the information. As he

states in his memo at Rec. A17, he relies upon ASAC Boltons hearsay report at

Rec. A15 to identify information which is approximately accurate. Mr.

Metzlers opinion is only as good as the reliability of the hearsay declarants in

ASAC Boltons memorandum. In the absence of sufficient indicia reliability with

respect to the Bolton declarants, that is, SAC Jeffries and SAC Bauer, Mr.

Metzlers opinion is wholly tainted and cannot autonomously be relied upon as

substantial evidence. If the information in the four posts is not accurate or even

approximately accurate, as the Agency has already conceded, false information

cannot be SSI.

Agency counsel argues that even disclosure of falsehoods should be deemed

SSI in certain contexts despite the contrary opinion of the Agency official

responsible for identifying SSI, that is, Mr. Metzler. Agency counsel cites no

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empirical predicate to support the claim that falsehoods could be SSI. Rather,

Agency counsel engages in a form of deductive logic, a seemingly scholastic

exercise, wherein disclosure of false information could be detrimental because it

might reveal a general state of affairs that should be protected in the interest of

transportation security. Agency Brief at p. 16. This position is not only

inconsistent with the Agency official responsible for dealing with SSI, but also

with the relevant regulation, 49 C.F.R. Section 1520.5(c), which deals with loss of

SSI designation. This regulation contemplates that information previously

designated as SSI, which no longer meets the criteria broadly defining SSI at

1520.5(a), could be deemed obsolete and released to the public. Obviously, such

obsolete information, by virtue of subject matter, which by definition, at one time

would have included information concerning deployments, numbers, and

operations of federal air marshals (1520.5(b)(8)(ii)), could reveal a general state

of affairs of the Agency if disclosed to the public. However, obsolete

information, despite what it may reveal about Agency historical practice and its

affairs is free from disclosure restrictions. Whatever effect such disclosure

would have on the general state of affairs of the Agency was obviously not a

concern of those who framed the regulation and, accordingly, such concerns could

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have no relevance here.

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CONCLUSION AND RELIEF

The Agencys determination that the four posts constitute SSI is not

supported by substantial evidence for the reasons discussed above, and in

Lacsons opening brief. The Agencys final order should be wholly set aside

because there is a lack of substantial evidence to support that order and the

Agency has acted arbitrarily and capriciously in entering the order.

Respectfully submitted,

/s/ Lawrence Berger

Lawrence Berger, Esq.

Mahon & Berger, Esqs.

70 Glen Street, Suite 280

Glen Cove, New York 11542

516 671 2688

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

CERTIFICATE OF SERVICE

Jose Lacson v. Dept. of Homeland Security, et al., No. 11-1447

I, Joan Eric, being duly sworn according to law and being over the age of

18, upon my oath depose and say that:

On September 11, 2012, I served 2 copies of the Public Brief - Sealed

Material Deleted upon the following counsel:

Edwin HimmelfarbDouglas N. Letter

U.S. Dept. of Justice

Civil Division, Appellate Staff

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Counsel for Respondents

via Federal Express

Unless otherwise noted, one original and fourteen copies of the Public Brief

- Sealed Material Deleted have been filed with the Court on the same date via

Federal Express.

Dated: September 11, 2012

____________/s/ Joan Eric____

JOAN ERIC

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Lacson v. DHS: DC Circuit retroactive "Sensitive Security Information" appeal

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