Eugene R. Robinson v. Janet Napolitano

United States Court of Appeals
For the Eighth Circuit
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No. 11-1834
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Eugene R. Robinson
lllllllllllllllllllllPetitioner
v.
Janet Napolitano, Secretary,
Department of Homeland Security,
Transportation Security Administration
lllllllllllllllllllllRespondent
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Petition for Review of Orders of the
DHS Homeland Security
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Submitted: May 15, 2012
Filed: August 7, 2012
[PUBLISHED]
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Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
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RILEY, Chief Judge.
Pro se petitioner Eugene R. Robinson seeks review of three final orders issued
by the Transportation Security Administration (TSA), designating certain information
Sensitive Security Information (SSI). Under the terms of a protective order in
Robinson’s ongoing employment discrimination lawsuit against Secretary Janet
Napolitano, the Department of Homeland Security (DHS), and TSA (collectively,
agency), TSA’s final order prevents Robinson from disclosing the SSI to the jury
without TSA’s permission. We deny Robinson’s petition.
I. BACKGROUND
A. Sensitive Security Information
Congress has directed the Under Secretary of Transportation for Security,
referred to as the Administrator of TSA, see 49 C.F.R. 1520.3, to
prescribe regulations prohibiting the disclosure of information obtained
or developed in carrying out security under authority of the Aviation and
Transportation Security Act (Public Law 107-71) or under chapter 449
of this title if the Under Secretary decides that disclosing the
information would—
(A) be an unwarranted invasion of personal privacy;
(B) reveal a trade secret or privileged or confidential commercial
or financial information; or
(C) be detrimental to the security of transportation.
49 U.S.C. § 114(r)(1) (previously codified at subsection (s)(1)), see Consolidated
Appropriations Act, 2008, § 568, Pub. L. No. 110-161, 121 Stat. 1844 (2007). Such
information is designated SSI. See 49 C.F.R. § 1520.5(a). TSA has issued
regulations governing “the maintenance, safeguarding, and disclosure of records and
information that TSA has determined to be [SSI].” 49 C.F.R. § 1520.1(a).
B. Robinson’s Employment
In November 2002, TSA hired Robinson as a Supervisory Transportation
Security Screener in Sioux Falls, South Dakota. In January 2003, the agency placed
Robinson on paid administrative leave, and ultimately terminated Robinson’s
employment.
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C. Underlying Litigation
In June 2008, Robinson, acting pro se, filed a complaint against the agency in
the United States District Court for the District of South Dakota. Robinson alleged
wrongful termination and various forms of employment discrimination, harassment,
and retaliation.
In March 2009, the district court, upon the joint motion of the parties, entered
a protective order governing the use and disclosure of SSI during litigation. The
protective order instructed,
[d]ocuments that are marked SSI or, though not marked, contain SSI,
shall be treated as confidential and shall not be published or made
available to the general public in any form . . . , but instead shall be filed
under seal. Material filed under seal will be available only to . . . . [the
parties], and counsel for the parties and paralegal, secretarial and clerical
personnel in their employ.
The order allowed Robinson to “use SSI disclosed to [him] in this litigation,” but
directed “SSI may not be further disseminated, including to a jury, except with written
permission from TSA.”
In response to Robinson’s pretrial submission of anticipated witnesses and
exhibits, the agency moved in limine to exclude testimony and other evidence,
including certain discussions and opinions involving SSI. During a pretrial
conference on October 18, 2010, eight days before the trial was scheduled to begin,
the district court considered the motion and determined Robinson could present some
of the SSI-related discussions and opinions to the jury. The district court reasoned
the evidence at issue was relevant and the agency’s “interest in maintaining the [SSI]
as confidential [could] be addressed by closing the Courtroom and instructing the
jurors to keep the information confidential, if necessary.”
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On October 20, 2010, the agency asked the district court to clarify its ruling
and enforce the protective order. The agency asked the district court to confirm that,
under the protective order, Robinson “may not provide SSI to the jury” and “shall
submit immediately a written request to TSA describing fully any SSI which he
wishes to use at trial.” The agency explained, “[u]pon receipt of such request, TSA
will try to devise workable substitutions for any SSI,” but if an agreement could not
be reached, the agency requested the district court “confine testimony that includes
SSI to that information that has been approved by TSA.”
On October 25, 2010, the district court held a hearing to address use of SSI
during the trial. During the hearing, it became evident that despite the protective
order’s clear language, those involved in the litigation had not previously realized the
protective order required TSA approval before submitting SSI to the jury. The
district court therefore ordered a continuance, and then instructed Robinson
to identify in writing any SSI you think you are going to be offering and
ask TSA to review that, if they are going to agree to the admission of
any of it, their agreement has to be in writing. If not, they will work
with you to try to figure out a method of presenting your evidence to the
jury, so the jury can understand the issues that happened.
Robinson submitted to TSA an amended exhibit list along with copies of the
exhibits and a list of “terms, acronyms, and TSA activities” Robinson anticipated
presenting at trial. Robinson asked TSA “to determine the security status of each . . .
proposed exhibit[],” and “[i]f any exhibit is determined to be subject to censorship for
SSI, . . . propose a method for [Robinson] to present his evidence at trial to properly
present his case while still insuring the SSI integrity of any said exhibit[].”
On December 6, 2010, TSA issued a final order (First Final Order). The First
Final Order stated “[p]ursuant to 49 C.F.R. 1520, . . . each of the documents
submitted by [Robinson] and reviewed by the SSI Program are SSI under 49 C.F.R.
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§ 1520.5(b)(9)(i) and (iv), and . . . (10).” The agency immediately “move[d] in limine
to prohibit the introduction at trial of questions, evidence or testimony containing
[SSI] as determined by TSA’s final order.”
On December 21, 2010, Robinson responded to the agency’s motion in limine.
Robinson indicated his intention to appeal TSA’s First Final Order, complaining
(1) TSA’s determination “truly scare[d]” Robinson because the First Final Order
“clearly states that everything sent to the TSA by [Robinson] . . . is SSI”; (2) the
documents accompanying the First Final Order did “not have any numbering system
or other method of keeping track of which documents are what and no listing of what
documents are part of the Final Order”; and (3) the First Final Order “is poorly
written and organized” and Robinson did “not know what documents are SSI.”
On December 22, 2010, TSA issued an amended final order (First Amended
Final Order). The First Amended Final Order cited the same authority, listed the
exhibits from both parties that TSA determined contained SSI, and attached redacted
versions of those exhibits. The agency submitted notice of TSA’s First Amended
Final Order on December 29, 2010. The agency explained TSA had amended the
First Final Order in response to Robinson’s concerns and “ha[d] always been willing
to work with Robinson on any SSI issue in this case.” The agency advised Robinson
and the district court “only six of Robinson’s seventy-nine exhibits contain SSI,” and
the First Amended Final Order “specifically outline[d] which documents and what
information in those documents contain SSI.”
On January 14, 2011, the district court granted another continuance so
Robinson could petition for review of the First Amended Final Order. On February
18, 2011, the agency submitted notice of TSA’s second amended order on SSI
(Second Amended Final Order). The Second Amended Final Order stated, “[u]pon
further review, [TSA] has . . . determined that [Robinson’s] Exhibit 67 contains seven
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(7) additional words that constitute SSI” and needed to be redacted. TSA provided
updated copies of the exhibits with the SSI redacted.
D. Appeal
On April 18, 2011, Robinson petitioned this court to review TSA’s three final
orders pursuant to 49 U.S.C. § 46110(a). Oral argument was originally set for
February 15, 2012, but upon Robinson’s request, was rescheduled for May 15, 2012.
On February 15, 2012, TSA’s attorney notified the court “of a change in [TSA]
policy.” TSA’s attorney explained that “due to changes in security procedure, [TSA]
will no longer designate as SSI a bag search protocol known as the ‘40-40-20 Rule.’”
TSA’s attorney attached the affected documents with references to the 40-40-20 Rule,
which were no longer redacted.
During oral argument, TSA’s attorney assured us the February 15 letter
represented TSA’s official position, superceding TSA’s previous orders, and
Robinson could use the updated exhibits during trial. Oral argument also addressed
Robinson’s ability to disclose test scores he obtained during his TSA training.
After oral argument, in a letter dated May 22, 2012, TSA’s attorney notified the
court TSA would not “object to [Robinson’s] disclosure of his own test scores at
trial.” TSA’s attorney attached exhibits TSA had reviewed showing Robinson’s test
scores—100%, 96%, and 96%—which were not designated SSI, and thus not
redacted under the Second Amended Final Order. In the same letter, TSA’s attorney
requested “the Court file its decision in this case initially under seal” to allow TSA
to “review the decision to ensure it does not contain SSI . . . and, if necessary, . . .
provide a redacted version of the decision that can be filed on the public docket.”1
1
We granted TSA’s request and this opinion has been crafted to remove
disclosure of SSI.
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II. DISCUSSION
Robinson argues TSA’s First Final Order, First Amended Final Order, and
Second Amended Final Order are invalid for a myriad of reasons. Our consideration
of these arguments is limited, however, in several ways.
First, our review is limited to TSA’s final orders. See 49 U.S.C. § 46110(a)
(explaining “a person disclosing a substantial interest in an order . . . may apply for
review of the order by filing a petition for review . . . in the court of appeals of the
United States for the circuit in which the person resides”). Our jurisdiction does not
extend to enforcement and application of the protective order, or the admission or
exclusion of evidence during the prospective trial. These ongoing issues are not
properly before us and remain within the discretion of the district court. See Fed. R.
Civ. P. 26(c), 37(b); Fed. R. Evid. 104.
Second, although Robinson challenges three of TSA’s “final” orders, the only
order at issue is the Second Amended Final Order. We need not consider the validity
of the two earlier orders, which the agency acknowledges are superseded by the
Second Amended Final Order and are not binding during the trial.
Third, our “scope of review is quite narrow.” Friends of Richards–Gebaur
Airport v. FAA, 251 F.3d 1178, 1185 (8th Cir. 2001). Congress has granted us
authority to “affirm, amend, modify, or set aside any part of” TSA’s Second Amended
Final Order. 49 U.S.C. § 46110(c). But “[t]he statute mandates that the agency’s
findings of fact are conclusive as long as they are supported by substantial evidence.”
Friends of Richards–Gebaur Airport, 251 F.3d at 1184. And “[w]e may overturn
nonfactual aspects of [TSA’s] decision only if they are ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.’” Boca Airport, Inc. v. FAA,
389 F.3d 185, 189 (D.C. Cir. 2004) (quoting 5 U.S.C. § 706(2)(A)); accord Friends
of Richards–Gebaur Airport, 251 F.3d at 1185; MacLean v. DHS, 543 F.3d 1145,
1149-50 (9th Cir. 2008).
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Mindful of these limitations, we begin by addressing Robinson’s claim that
TSA’s order is arbitrary and capricious. “Whether an agency’s action is arbitrary and
capricious depends on whether the agency offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.” Watkins v.
Nat’l Transp. Safety Bd., 178 F.3d 959, 961 (8th Cir. 1999) (per curiam) (quoting
Mausolf v. Babbitt, 125 F.3d 661, 669 (8th Cir. 1997)) (internal marks omitted).
Here, the information TSA designated SSI and redacted in TSA’s Second Amended
Final Order fits comfortably within the regulatory definition of SSI.
Title 49 C.F.R. § 1520.5(b) designates as SSI certain categories of
“information, and records containing such information,” including “[s]ecurity
screening information,” 49 C.F.R. § 1520.5(b)(9), and “[s]ecurity training materials,”
49 C.F.R. § 1520.5(b)(10).2
Security screening information is “information regarding security screening
under aviation . . . security requirements of Federal law.” 49 C.F.R. § 1520.5(b)(9).
This relevantly includes “[a]ny procedures, including selection criteria and any
comments, instructions, and implementing guidance pertaining thereto, for screening
of persons, accessible property, checked baggage, . . . and cargo, that is conducted by
the Federal government or any other authorized person.” 49 C.F.R. § 1520.5(b)(9)(i).
“Any security screener test and scores of such tests” also constitute security screening
information. 49 C.F.R. § 1520.5(b)(9)(iv).
2
Information meeting this criteria does not automatically constitute SSI.
TSA must also determine the information was “obtained or developed in the
conduct of security activities” and disclosure of the information would, for
example, “[b]e detrimental to the security of transportation.” 49 C.F.R.
§ 1520.5(a). Information previously designated SSI may lose its status when TSA
determines disclosure would no longer be detrimental to security. See 49 C.F.R.
§ 1520.5(c).
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Security training materials are “[r]ecords created or obtained for the purpose
of training persons employed by, contracted with, or acting for the Federal
government or another person to carry out aviation . . . transportation security
measures required or recommended by DHS or DOT.” 49 C.F.R. § 1520.5(b)(10).
All of the redacted information closely relates to either TSA’s screening
procedures, the scores of TSA’s security screener tests, or security training materials.
We therefore do not find fault with TSA’s SSI assessments as reflected in the Second
Amended Final Order.
We disagree with Robinson’s characterization of TSA’s Second Amended
Final Order as “contradictory and ambiguous.” TSA’s SSI determinations and
redactions are materially consistent, and TSA adequately explained the reasons for
its determinations by referring to the applicable regulatory subsections. Furthermore,
the redactions at issue are minimally prejudicial to Robinson’s ability to present his
evidence to the jury.
TSA’s Second Amended Final Order, as clarified by TSA’s May 22, 2012 letter
to this court, is not arbitrary or capricious. We have considered Robinson’s numerous
arguments contending TSA’s actions are otherwise contrary to law, and find the
arguments without merit. See 8th Cir. Rule 47B.
In reaching these conclusions, we are sympathetic to Robinson’s concerns.
There certainly exists the possibility of fundamental unfairness—not to mention
bureaucratic mischief—in situations such as this, where one litigant possesses a
significant measure of control over the admissibility of the other litigant’s evidence.3
3
This possibility also exists as the result of the terms of the protective order
Robinson jointly proposed, and which is not within the scope of our review at this
time.
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At this stage, we have not detected an attempt by the agency to gain a tactical
advantage by arbitrarily exercising its authority to redact evidence. Nor do we
anticipate this possibility coming to fruition. The agency has represented to this
court, as it must, that it will continue to work in good faith with Robinson and
develop acceptable SSI substitutes to ensure Robinson can fully and fairly present his
case. See 49 U.S.C. § 114(r)(4)(A) and (D) (“Nothing in this subsection, or any other
provision of law, shall be construed to authorize the designation of information as
[SSI] . . . . (A) to conceal a violation of law, inefficiency, or administrative error; . . .
or (D) to prevent or delay the release of information that does not require protection
in the interest of transportation security.”).
We also have the utmost confidence the district court—which “possesses
inherent powers ‘to manage its affairs so as to achieve the orderly and expeditious
disposition of cases,’” Wescott Agri-Prods., Inc. v. Sterling State Bank, Inc., 682 F.3d
1091, 1095 (8th Cir. 2012) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43
(1991)) (internal marks omitted)—will ensure a fair trial for both parties and prevent
the disclosure of SSI. See generally United States v. Reynolds, 345 U.S. 1, 9-10
(1953) (recognizing that while the executive branch’s invocation of the state secrets
privilege may prevent disclosure in certain circumstances, “[j]udicial control over the
evidence in a case cannot be abdicated to the caprice of executive officers”).
III. CONCLUSION
We deny Robinson’s petition and affirm the Second Amended Final Order, as
clarified by TSA’s May 22, 2012 letter to this court.
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