Former airport screener wins right to sue

Transportation Security Administration airport screeners can take their workplace constitutional claims to federal court, the 9th U.S. Circuit Court of Appeals ruled Wednesday in an Oakland case.

John Gavello, who worked as a screener at Oakland International Airport in 2003 and 2004, and the American Federation of Government Employees Local 1 sued the TSA, the Department of Homeland Security and various administrators, claiming Gavello was fired in retaliation for distributing union information at work -- a violation of his First Amendment rights.

The government persuaded U.S. District Judge Claudia Wilken of Oakland to dismiss the case for lack of jurisdiction. Its argument was that by excluding TSA screeners from the protections of the Civil Service Reform Act of 1978 or the Federal Aviation Administration personnel management system, and by giving the TSA's administrator unfettered discretion to set screeners' employment terms and conditions, Congress meant that no judicial review of screeners' constitutional claims should be allowed.

Wilken also ruled the union had no legal standing to sue either on its own behalf or Gavello's.

During this case's appeal, the U.S. Supreme Court's review in a similar case led the government to abandon its argument that the federal court had no jurisdiction over screeners' constitutional claims, but the 9th Circuit appeals court ruled on it anyway Wednesday.

Circuit Judge WilliamFletcher noted Supreme Court case law requires a "heightened showing" of Congress's clear intention to preclude judicial review of constitutional claims, lest people's basic rights be unfairly infringed. In this case, he wrote, no such clear intention has been proved.

And the appeals court found "the Supreme Court has squarely held that a union may have standing to challenge governmental interference with organizing activities," he wrote.

"(T)he fact that the TSA has banned collective bargaining does not mean that a union representing TSA employees has no useful function; nor does it mean that the TSA has free rein to retaliate against screeners who speak in favor of collective bargaining rights," Fletcher wrote for the three-judge panel.

The TSA's press office didn't return a call seeking comment.

"We are very excited, we are thrilled, we couldn't be happier with the decision," said AFGE attorney Gony Frieder, adding the union always believed "a federal government employee has the right to go to federal court to challenge a constitutional wrong. It's very basic, it's very fundamental and it was shockingly not being observed in courts across the country."

Frieder noted the case now returns to Wilken, where the government will pursue a new argument the 9th Circuit panel declined to consider in Wednesday's ruling -- that the case should be dismissed for the plaintiffs' failure to state a claim on which the courts can grant any sort of relief.

"We still have a very long haul in front of us before we see justice for Mr. Gavello, but this is a step in the right direction," she said.


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