GovernmentExecutive.com

The Merit Systems Protection Board has ruled that it does not have jurisdiction over whistleblower complaints filed by screeners with the Transportation Security Administration.

The board examined complaints filed by three TSA whistleblowers and concluded on Aug. 12 that it does not have jurisdiction over individual-right-of-action appeals filed by any screeners.

Under the ruling, the 2002 Aviation and Transportation Security Act precludes jurisdiction. "The ATSA contains very specific personnel authority, applicable only to screeners, that authorizes the TSA to hire, discipline, and terminate screeners without regard to any other law," the board wrote.

The board examined appeals filed by Suzanne Schott, who was a screener at Norfolk International Airport in Virginia; Kyle Jiggetts, who worked at LaGuardia International Airport in New York; and Jacob Younger, who worked at Cyril E. King International Airport in the U.S. Virgin Islands.

All three were removed from their positions during the summer of 2003; they alleged that actions against them were taken in reprisal for making protected disclosures. Jiggetts further alleged that TSA's action was the result of discrimination on the basis of his race, religion, disability and partisan political affiliation. All three represented themselves before the MSPB.

The Office of Special Counsel filed an amicus brief in support of the three screeners, arguing that whistleblower protections apply to screeners who were transferred to the Homeland Security Department. The merit systems board, however, disagreed with the special counsel office that whistleblower protections include IRA appeal rights.

The Government Accountability Project said Monday that the ruling gags TSA screeners from disclosing security problems.

"This decision sends a clear yet disturbing message to TSA screeners willing to defend the country by disclosing security vulnerabilities and breaches," said Doug Hartnett, GAP's national security campaign director. "TSA screeners protect the nation on the frontlines of homeland security policy. The failure to protect them against retaliation for blowing the whistle is a gag order and threat to national security."

Tom Devine, GAP's legal director, said he hoped Congress would "correct" the ruling in legislation in response to findings from the 9/11 commission, which identified multiple border and transportation security problems and vulnerabilities.

The three screeners have the right to appeal to the Court of Appeals for the Federal Circuit.

On Second Thought . . .

The Veterans Affairs Department can try again to fire a nurse who was allegedly rude to some of her patients, the Merit Systems Protection Board ruled recently.

VA officials placed Mary Jackson, a GS-6 level nurse, on a 90-day "performance improvement plan" in late 2000 as a result of complaints from patients. But nearly a year later, the complaints persisted. In 2001, the agency fired her for "failure to use courtesy and good manners," and for falling short on certain job responsibilities, including morgue care.

Jackson later appealed the decision, and an administrative judge ruled in her favor. The VA had judged Jackson against invalid "absolute and near absolute" performance standards, the judge decided. The standards were such that she could have been fired on the basis of one or two patient complaints, regardless of how many patients she treated and the type of care she administered.

But the Merit Systems Protection Board on Aug. 10 decided to reopen Jackson's case in light of a March 2004 Court of Appeals for the Federal Circuit ruling that absolute performance standards are legal.

"The managers of federal agencies, not the members of the board, have the authority to decide what agency employees must do in order to perform acceptably in their particular positions," the board noted. In accordance with the federal appeals court decision, agencies can set performance standards "as high as" managers like, so long as the standards are objective, reasonable and explained at the outset to employees, the board ruled.

The board referred the case for reconsideration based on the appeals court's modified legal interpretation of allowable performance standards.

Mary B. Jackson v. Department of Veterans Affairs, Merit Systems Protection Board (AT-0432-02-0232-I-1), Aug. 10, 2004