Beware of the TSA: The new deal

Beware of the TSA

The new deal

Stephen P. Prentice
Stephen P. Prentice

Just in case you have not heard yet, the Transportation Security Administration (TSA) is now the government agency you will likely deal with in any dispute over termination of your security sensitive employment in the airline business and or the suspension or revocation of any FAA certificate you may have. They have taken over all aviation security functions of the Federal Aviation Administration.

You might think "Oh well . . . another government agency." But the fact is this agency can have a significant effect on your ability to continue working as a pilot, mechanic, bag loader, fueler, aircraft cleaner, screener, or any other position that might require SIDA (security identification display area) clearance.

Early this year Congress gave the TSA the power to determine whether or not someone is a security risk. In the case of people holding FAA certificates, like mechanics, the TSA is directed to notify the FAA any time it identifies individuals known to pose or are suspected of posing a threat to aviation safety. The final rule by FAA was effective on Jan. 24, 2003 and was published without giving the public an opportunity to comment on it. FAA simply found that notice and comment were . . . unnecessary, impracticable, and contrary to the public interest. The TSA can have a significant effect on your ability to continue working as a pilot, mechanic, bag loader, fueler, aircraft cleaner, screener, or any other position that might require SIDA clearance.They are allowed to do this in accord with the law under certain circumstances. This was one according to them! Further comment was permitted, however, after the fact, but the time to do so has since passed on March 25, 2003.

Are you a security risk?
When any information, provided by anybody, reaching the TSA suggests (in the opinion of the TSA) that an individual poses or may pose a security threat to aviation safety, they are required to not only notify that individual (and his employer) but also the FAA. The FAA then is required to suspend your mechanic certificate (if you have one) and also advise your employer, who will then terminate you pending further proceedings.

There is no procedure presently established to challenge the TSA action except that you can write them a letter in an attempt to show you are not a security threat.

Some have appealed this finding to the National Transportation Safety Board (NTSB). As most of you know, any alleged violations of the FAR's prosecuted by the FAA can be appealed to the Board and a judge will hear your case. Not so with the TSA! When you appeal to the NTSB they will simply say they do not have authority to question the action by the TSA. The only issue they can review is whether or not the FAA followed the law in notifying you that you have been identified as a security threat by the TSA.

Example
Here's an example that I recently heard of . . .

Your roommate and you have a dispute over rent. He leaves and you subsequently find a check made out to him. You say he owes you money so you cash the check (in his name) and pocket the loot. He finds out and gets the District Attorney to prosecute you. You are charged with fraud and petty theft of less than $1,000. The DA agrees to a diversion of the charge. This is simply a program to put the case in limbo for a year or so and if you do not commit any crimes during that time they will dismiss the case. The only demand is that you enter a conditional guilty plea and pay a fine. This procedure is quite common in most states and provides an easy way for the DA to dispose of otherwise minor matters without burdening the court system. The case is dismissed and there is no conviction. A good deal for all concerned.

You inform your employer in accord with your understanding of the 10-year background check instructions and the company informs the TSA. They tell the company that they must suspend you because you are deemed convicted of a crime.

Even though you have not been convicted of anything the TSA will have you suspended and terminated from your job.

Obviously, if the employee did not reveal the matter to his employer, most likely, he would still have his job. A diversion is an otherwise private matter although it is of record in the court. The probation department could however, have a reason to contact your employer.

Keep this in mind. Never discuss security matters or your thoughts on them while on the job. Any adverse comment could be construed by a fellow employee as some sort of security threat and report you to the TSA. That's how easy it would be to get you into trouble and terminated! In other words as many have said
. . . keep your mouth shut!

The short process
If you are targeted by the TSA they will send you and the FAA a letter stating that you are considered to be a security threat. They don't tell you anything else in the letter much less provide you with evidence supporting their determination.

When you receive the notice you have 15 days to respond and ask for any information that they can release. They then have 30 days to respond to your request and will usually say it is classified and therefore not releasable.

You then have 15 more days to formally provide some sort of a response and try to get yourself off the hook. The TSA will review your response and most likely determine that you're still a threat. There is no further formal method to challenge this decision. You're stuck!

The new FAA rul Part 63.14Granted security is a paramount consideration in view of Sept. 11, but even the FAA provides an avenue when it takes what is called emergency action and suspends or revokes your certificates on an immediate basis because of a perceived threat to safety. It allows an appeal to determine if in fact an emergency exists at all. It seems to me that the TSA could afford the same type of appeal process.

The general objections - Due process
From a legal standpoint, what most are concerned about is due process. What this means, among other things, is that you should have an opportunity to present your case to an independent body before any determination of threat is made. You should be afforded an opportunity to argue against any action before you lose your job and/or certificates.

Added to this feature is the notion that you should also of course have access to the evidence they have against you that supports the TSA position that you are a threat. They usually will not want to provide information to you because they will describe it as classified and secret stuff. Hogwash! How can you be expected to reply to any charge without knowing what it is based on?

In addition, a formal procedure should be available to challenge any TSA finding. A proceeding, not unlike the NTSB appeal process, as noted, should be added to the law. If a process is provided for the most minor violation of the FAR, it certainly can and should be provided for a charge that strips you of your right to earn a living, demeans you before your peers, and deprives you of a means to provide for your family.

So, don't beat your wife (it's a felony), get caught in a serious DUI, rob a bank, etc. Basically, all the crimes listed in the 10-year background check statute, are grounds for TSA action. Be careful about what you say on the job, and don't ever talk about security risks or make any bizarre security statements in public. It could cost you or your buddy a job and maybe your certificates. If you have any contact with TSA or have had punitive action taken against you please forward your story to this writer at aerolaw@att.net. By getting the word out to the field maybe we can get this law changed for the better!

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He can be reached at aerolaw@att.net.

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