"I Made It Up" Does Not Cut It As a Defense

A federal air marshal facing removal for disclosing sensitive agency information online challenged the agency’s findings that what he disclosed was factual. He claims he made it all up and therefore cannot be fired for it. (Lacson v. U.S. Department of Homeland Security and Transportation Security Administration (C.A.D.C. No. 11-1447, 7/23/13))

Jose Lacson became a federal air marshal in 2002 and worked at the Miami office for eight years. Apparently not able to help himself, Lacson began posting as “INTHEAIRCOP” in an online forum known as Officer.com. He made no secret of his position as an air marshal and even used an official TSA badge as his avatar. He held forth on being an air marshal, what it’s like, what the TSA hiring practices are, how many marshals had been hired, where marshals were assigned, attrition rates, etc. (Opinion p. 3)

TSA discovered Lacson’s posts some five years after he began making them. When they traced the posts to Lacson, he admitted they were his posts. However, he swore that he had made most of the data up. He claimed he did not even know the real staffing data.  The agency compared Lacson’s posts to its actual data and concluded that in fact much of what Lacson had posted was true. As a result Lacson was fired, citing release of “Sensitive Security Information” (SSI), misuse of government computers, and making “inappropriate statements” to the online forum. (p. 4)

Lacson fought the removal in two ways. He went to the Merit Systems Protection Board with an adverse action appeal, and he filed a separate appeal to the agency’s SSI program chief, arguing that he had not in fact released SSI.

The second appeal was decided first. The agency concluded that four of Lacson’s posts violated the agency’s prohibition against releasing SSI. At this point, Lacson had his MSPB appeal dismissed and pursued the SSI determination in federal court.

To make a long story short, the D.C. Circuit concluded it had jurisdiction to entertain Lacson’s appeal. It then concluded that the agency had substantial evidence to find three of Lacson’s four SSI disclosures were in violation of the law and affirmed the agency’s order with respect to those three disclosures. As the court stated, “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….”

Presumably Lacson will go back to the MSPB where it must now be decided whether the three SSI disclosures affirmed by the court are enough to warrant removal.

Lacson v. DHS and TSA

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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