A Federal Air Marshal was terminated by the TSA after posting sensitive information on an online forum for law enforcement officers, but he claims he made the information up.
In Lacson v. U.S. Dept. of Homeland Security and TSA, Jose Lacson petitioned the D.C. Circuit to set aside the TSA's order which terminated him for leaking sensitive security information ("SSI") about Federal Air Marshall hiring numbers and assignments on the online forum Officer.com.
The case centered around jurisdiction and whether the evidence presented by the TSA was sufficient in light of claims that Lacson made the alleged SSI up.
Jurisdiction, The Proof Is in the Statute
No federal circuit case involving a review of agency decisions would be complete without a thoroughly hashed out discussion of the ability to even hear the case, and the Lacson case is no exception.
The D.C. Circuit acknowledged that there have been a line of cases where government employees have tried to use the Administrative Procedure Act to circumvent the authority of the Merit Systems Protection Board (MSPB) to administratively deal with termination appeals under the Civil Service Reform Act.
In fact, there was a Supreme Court case, Elgin v. Dept. of Treasury, where the primacy of the MSPB in these matters was confirmed.
However, there is an exception for areas where Congress specifies that jurisdiction lies elsewhere, like in 49 U.S.C. § 46110, which explicitly grants jurisdiction over review of TSA orders to the D.C. Circuit.
Enough Evidence of SSI?
Satisfied that Congress had explicitly given it jurisdiction for over 30 years, the Lacson Court turned to whether there was sufficient evidence to support that Lacson had actually spilled the SSI beans online.
Under 49 CFR § 1520.5(b)(8)(ii), SSI includes "[i]nformation concerning the deployments, numbers, and operations" of Federal Air Marshals, which should be satisfied by Lacson's posts discussing hiring numbers and assignments of Air Marshals.
Lacson argued that while this is correct, he had no basis to believe that the information is true and made it up on the spot, which was only rebutted by an internal TSA memo that referenced the posts veracity being verified by two Special Agents in Charge in the TSA.
This seems like pretty weak evidence, and hearsay too, but hearsay evidence has been allowed and considered sufficient by the D.C. Circuit in reviewing administrative decisions, so the order was upheld.
Loose lips online sink job opportunities in the air (too confusing?) so don't blab about your federal security job online.