It isn’t every day that the Transportation Security Administration (TSA) Chief Counsel files a lawsuit against the DHS Secretary and the DHS Inspector General (IG). Yet, that is what happened on January 6, 2020, when TSA Chief Counsel Francine Kerner had a high profile lawyer file a 38-page complaint against DHS Secretary Chad Wolf and DHS IG Joseph Cuffari (in their official capacity) in the U.S. District Court for the Eastern District of Virginia.

The lawsuit, which has only recently come to light, alleges that the DHS IG violated Kerner’s privacy and due process rights by posting information on the DHS IG website that Kerner claims was not authorized for public release under the Privacy Act. Although the complaint names both Chad Wolf and Joseph Cuffari as defendants, the majority of the text in the 38 pages is focused on actions of the DHS IG’s office in January 2018 concerning a report their office (OIG) prepared about a TSA Transportation Security Executive Service (TSES) employee who was the subject of an anonymous misconduct allegation submitted in December 2014, thereby triggering an internal TSA investigation in 2015.

The essence of Kerner’s lawsuit is summarized in Paragraph 4 of the complaint:

“4. In shifting blame away from General Taylor [the then acting Administrator of TSA,] the published OIG Review unfairly impugned Ms. Kerner’s professionalism as Chief Counsel, accusing her (and two colleagues) of having “deviated from,” “interfered with,” “circumvented” and “commandeered” TSA policy and practice in order to provide the TSES Employee [not named in the Complaint] with “unusually favorable treatment.” These negative terms were chosen to convey to an uninformed reader that Ms. Kerner had acted without requisite authority and for an unacceptable purpose. As her supervisory chain later determined, that was not true.”

The remainder of the complaint lays out in extensive detail a summary of conversations, official actions, allegations of improper conduct by TSA leaders (other than Kerner), and a discussion of accolades and awards Kerner has amassed during her 40 year federal career, including her tenure at TSA, which started in 2002 when TSA was still part of the Department of Transportation. It also contains a compendium of legal and regulatory procedures that Kerner says apply to her situation. It is a fascinating read.

Although Kerner’s lawsuit does not name the TSES employee by name, the complaint provides a detailed list of the TSA leadership positions the subject of the 2015 investigation held:

“29. On December 11, 2014, OOI received an anonymous complaint alleging that a TSES Employee had committed misconduct by engaging in inappropriate relationships and had violated TSA policies designed to ensure a competitive hiring process. As an Assistant Administrator, the accused TSES Employee was a member of TSA’s Senior Leadership Team (“SLT”) and reported to the Deputy Administrator of TSA. The TSES Employee had served in several TSES positions as the Deputy Assistant Administrator of the Office of Security Operations (OSO), the Deputy Assistant Administrator of the Office of Intelligence and Analysis (“OIA”), and the Assistant Administrator of the Office of Inspection before his assignment to serve as AA of OIA on December 1, 2014. As Assistant Administrator of OIA, the TSES Employee also served as TSA’s Key Intelligence Official (“KIO”). A former Marine, the TSES Employee had been lauded by prior TSA Administrator Kip Hawley for his efforts to help stand up TSA after the terrorist attacks of September 11, 2001, appearing in Mr. Hawley’s book: Permanent Emergency Inside the TSA and the Fight for the Future of American Security (2012).”

Providing such a detailed description, without naming the individual, in a lawsuit that is principally based upon a claim of “unwarranted invasion of privacy,” while likely completely legal, came across to me as somewhat ironic. I doubt that I am the only person who holds that opinion.

Kerner’s lawyer, David Warrington, is listed as “Of Counsel” at the law firm Kutak Rock. His biography on the firm website highlights a number of high-profile legal and political activities in which he has engaged. It is also a fascinating read:

“David is recognized as one of the leading Republican lawyers in the nation. As General Counsel for the Ron Paul 2012 Presidential Campaign Committee he led the legal team for the $45 million 50-state campaign and led the legal team that fought the delegate challenges and Rules contest on behalf of Ron Paul delegates at the 2012 Republican National Convention in Tampa, Florida. He has been called the “Lawyer to the Liberty Movement.”

David served as counsel for the 2016 Trump Campaign to the Credentials, Platform, and Rules Committees at the Republican National Convention in Cleveland, Ohio. Additionally on behalf of the Trump Campaign, he successfully defended Trump delegates in a federal lawsuit brought by individuals who sought to challenge the ability of the Republican Party to set the rules for its delegate selection process. David has been involved in some of the highest-profile political campaigns and issues in the nation and regularly represents and advises elected officials, non-profit advocacy groups, trade associations, political consultants, and political action committees on all aspects of participation in the political process at both the state and federal levels. He actively litigates cases involving political liberty based on the First, Second, and Fourth Amendments to the United States Constitution.

He is a proud veteran of the United States Marine Corps.”

The lawsuit asks the federal court “to vindicate her rights under the Privacy Act and to recover damages of not less than $1,000, as well as reasonable attorneys’ fees and costs.” Toward the end of the complaint, Paragraph 110 describes the damages Kerner asserts that she has sustained:

“110. OIG’s unlawful posting of the OIG Review has caused Ms. Kerner significant harm and financial loss in the form of: (a) permanent loss of earning capacity due to reputational damage; (b) attorneys’ fees relating to attempts to obtain redress from the DHS Office of Inspector General; and (c) the cost of therapy to cope with anger and anxiety caused by the unlawful publication of the OIG Review to the news media and public on January 8, 2015, and her recognition that she was made a scapegoat to protect the reputation of General Taylor.”

I have no opinion on the merits of the case, but given Warrington’s background, I fully expect he will be a zealous advocate for his client, particularly given the tone of the language used in the complaint.

What I do have an opinion on, however, is not related to the legal merits, or lack thereof, of Kerner’s lawsuit but about how DHS (and specifically TSA) should act to avoid any inference or appearance of retaliation or retribution against Kerner during the pendency of her federal court case. I am aware that in other situations where complaints are made by an employee against their employer, the employer will place the employee on an indefinite “paid administrative leave” so as to avoid any hint of improper activity while the investigation is ongoing.

Indeed, TSA has done this on several occasions in employment-related investigations, most recently according to news reports involving a Federal Security Director at a major airport. I also recall that several years ago former DHS IG Charles Edwards was placed on “paid administrative leave” during the pendency of a DHS investigation into alleged misconduct.

GAO and OPM have both provided extensive comments over a number of years about the use of “paid administrative leave” as an appropriate action while an investigation is being performed. It is not an uncommon occurrence, and I believe TSA should invoke it in this case based upon the nature of the allegations. It is not meant as a punishment to the employee placed on paid leave as much as it is to protect them from the obvious awkwardness and appearance of a conflict of interest between personal claims and professional responsibility. In this case, I believe it is appropriate and necessary that DHS act to eliminate any possibility of actual or perceived adverse actions against Kerner for having filed her lawsuit and the most appropriate action they could take, in my opinion, is to place her on paid administrative leave.

The case has been assigned to US District Court Judge Anthony J. Trenga and given Case #:1:20-cv-00012. As of the time of writing this blog post, DHS had not filed a response to Kerner’s lawsuit.

David Olive focuses his blogging primarily on the “business of homeland security” — the interaction of the private sector with the Department of Homeland Security and other national security agencies. Read More