TSA Gives Screening Personnel MSPB Appeal Rights
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
The Transportation Security Administration (TSA) and the Merit Systems Protection Board (MSPB) have reached an agreement to provide TSA screening personnel with appeal rights equivalent to the Title 5 appeal rights available to most other federal employees.
When Congress created TSA months after the September 11, 2001, terrorist attacks, it did not provide screeners with the right to appeal adverse actions, including terminations, to the MSPB. Instead, Congress allowed TSA to develop its own procedures for addressing employee discipline. With that broad authority, TSA withheld collective bargaining rights from screeners until 2011, when the agency’s then-administrator agreed to allow them to vote to form a union to engage in limited collective bargaining.
In June of this year, Department of Homeland Security Secretary Alejandro Mayorkas ordered TSA to give screeners full collective bargaining rights and due process protections equivalent to those in Title 5. This month, TSA implemented that order and released a memorandum of agreement with MSPB “to set forth a general framework for MSPB to adjudicate and issue binding decisions for appeals” of appeals from screening personnel “in the same manner” as appeals filed by TSA’s Title 5 workforce.
Under the agreement, screening personnel (including Transportation Security Officers (TSOs), Lead TSOs, Master TSOs, Expert TSOs, and Supervisory TSOs) will be entitled to appeal covered adverse actions. MSPB will process those appeals under the same regulations it uses to process Title 5 appeals, and TSA “will implement final MSPB decisions.” However, the agreement does not say whether screeners who are unhappy with their result at MSPB will then be able to appeal to the U.S. Court of Appeals for the Federal Circuit.
The agreement goes into effect on September 26 and covers actions such as demotions and terminations issued on or after that date.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.