GovernmentExecutive.com

A San Francisco appeals court ruled Wednesday in a 3-0 decision that a Transportation Security Administration screener who was fired in 2004 after receiving a warning about his union activities can sue TSA for an alleged violation of his right to free speech.

The American Federation of Government Employees hailed the ruling, which reversed an earlier district court decision, but cautioned that it marked the beginning of a legal fight over TSA screeners' union rights.

Judge William Fletcher, writing for the U.S. Court of Appeals for the 9th Circuit, ruled against the government's procedural objections to the lawsuit, filed by screener John Gavello. TSA had argued that Gavello could not sue the agency because of a July 2002 directive that said that during a one-year probationary period, screeners had "no right of reply" and no right to an administrative appeal if they were fired. Lawyers for TSA also argued that Congress gave the TSA administrator broad latitude over employment in the agency's 2001 authorizing legislation.

That latitude was not broad enough to cover constitutional complaints, Fletcher wrote.

"If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly," the decision said. "We conclude that the statutory scheme governing TSA security screeners does not express a clear intention on the part of Congress to preclude judicial review of screeners' constitutional claims."

Gavello sued TSA after the agency fired him on the grounds that a grievance he filed revealed baggage screening procedures to the union and its legal counsel. Gavello and AFGE contended that the firing was retaliation for Gavello's union activities, and had a chilling effect on his and other Oakland International Airport screeners' First Amendment rights. Though TSA screeners do not have collective bargaining rights, they are not legally barred from joining unions.

Fletcher ruled that because "there is no administrative scheme that would afford probationary TSA screeners...with any administrative forum in which to seek relief," Gavello's case can be heard in federal court. Fletcher remanded the case back to the district court.

Gony Frieder Goldberg, one of the AFGE lawyers representing Gavello, said the ruling was a victory because Fletcher's decision reaffirmed that joining a union is a First Amendment right and validated the screeners' abilities to defend the exercise of those rights in court.

"We do feel, as an overall matter that it will have an effect on organizing, and to the extent that when we organize more and more screeners, and when we make our presence more and more felt, it might also give us strength with collective bargaining," she said.

Goldberg added the decision may encourage TSA to create a venue for alternative dispute resolution to avoid further lawsuits.

"I know that there has been a lot of -- due to the union -- focus on the TSA by Congress, and that the TSA does, in part, respond to those types of eyes looking [at the agency's activities]," she said.

A spokeswoman for TSA said the agency does not comment on pending litigation.

COMMENTS

• There are indeed bad ones in the unions, but there are indeed bad ones in management as well. When a union or non union employee does a mis-deed at his/her work, on a large average of the time, it is usually a non serious violation. But when a management type gives discipline for this vilation, it is far over and exceeding the deserved punishment for said violation. Mainly to show and effect their power or to protect their bonuses. These extreme punishments many times are actual human rights abuse that tends to hurt the person and their families far beyond what it should. Most employees want to do their jobs and do them right or above and want to enjoy their work and work with management, but when you have managers whose goals are bonuses, shows of power to their employees and their upper level managers, it is inhuman. Robert M. Lundstrom Posted September 7, 2007 3:11 PM
• To: David Schow: The issue is, the U.S. Circuit Court of Appeals reversed the decision of Judge Cladia Wilken. I now have the ability to have my case presented to others, a trial by jury. Yes, TSA's reason for termination was for releasing information, however you don't personnally know the details, or even if a violation of policy did occure. You are commenting on the face value of what was printed by the press; I appreciate this! I too would definitely be concerned if a trusted federal, state, local government, or civilian work place employee "in fact" committed breached security. However, from me personally, 1) a breach did not occur; 2) TSA will now be able to explain their justification in a court of law. To: Dan Ketter: I hope TSA attorney's leave this recent decision alone, and concentrate on their own defense. Anything related to court decision will be tested and can be reversed via case law. I just hope we can get this matter resolved in a short time so we all can move on. However, it could take years. Now, all specific details of my lawsuit with TSA can now be revealed in a court room setting. I believe if you and others closely follow the litigation process with my case you may be surprised of the testimony of other witnesses and my own. I again thank you all for your comments! John Gavello Posted September 7, 2007 2:07 PM
• The 9th Circuit is reknown as a bunch of whackos. The First Amendment doesn't allow someone to scream "fire" in a theatre, nor does it protect federal agents when they disclose protected or classified information. By the way, the First Amendment also protects the free-exercise of religion. You can't parce the First Amendment. So, by extension, the 9th Circuit likewise rules that government employees have the right to freely practice and discuss religion in the workplace. Given the 9th Circuit's record on the First Amendment, I doubt that was their intent. Can't have it both ways. Dan B. Posted September 7, 2007 1:28 PM