FOR IMMEDIATE RELEASE
September 05, 2007
Emily Ryan
(202) 639-6421

AFGE Scores Major Victory in Case on Court Jurisdiction to Hear Constitutional Rights Case Against TSA

(WASHINGTON)—More than three years after the American Federation of Government Employees took the case of a Transportation Security Officer who was fired for union activity to the courts, the U.S. Court of Appeals for the Ninth Circuit today reversed a district court ruling that it had no jurisdiction to hear a TSA case on constitutional claims, or that the union had no standing to bring the case to court. (Ruling Attached)

“AFGE is immensely satisfied with this ruling,” AFGE General Counsel Mark Roth said. “This landmark decision on the court’s ability to hear cases on TSA security screeners’ constitutional rights will set the precedent for many cases to come. AFGE is prepared to again argue our case before the District Court.”

In early 2004, the TSA disciplined and fired a TSO at Oakland Airport for sending his grievance about baggage screening practices to AFGE. The union later obtained direct evidence from the employee’s supervisor that TSA planned to fire that employee because of his union activity, and filed suit on April 1, 2004, alleging that the TSO’s First Amendment constitutional rights were violated.

The Department of Justice, representing the TSA, argued that the court should dismiss the case based on a lack of subject matter jurisdiction. It argued that because TSOs were exempt from the protections of the Civil Service Reform Act and because the TSA administrator was given discretion in determining employment terms and conditions, Congress intended to preclude judicial review of screeners’ constitutional claims. DoJ additionally argued that AFGE lacked standing to sue.

In response, AFGE argued that the courts do have the right to review unconstitutional terminations. Per the Aviation Transportation Security Act of 2001, Congress took away the right of employees of the TSA to go to the Federal Labor Relations Authority when the agency retaliates due to union activity¾a right all other federal employees are afforded. In its place, Congress has not provided an adequate administrative avenue that would pre-empt judicial review, and so the determination regarding the unconstitutionality of TSA’s actions is properly before the court.

The U.S. District Court in December 2004 ruled that the court had no right to review the case and that AFGE had no standing to sue. The Court of Appeals reversed that decision and remanded the case back to the district court, stating that “If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly. 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. The district court therefore has subject matter jurisdiction over Plaintiffs-Appellants’ action. We further conclude that AFGE has standing.”

The Court of Appeals in its ruling also stated that “the fact that the TSA has banned collective bargaining does not mean that a union … has no meaningful function; nor does it mean that the TSA has free reign to retaliate against screeners who speak in favor of collective bargaining rights.”

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