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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
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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
i
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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.
ii
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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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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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