The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 20
Docket No. SF-0752-14-0314-I-1
Nicole D. Wilson,
Appellant,
v.
Department of Homeland Security,
Agency.
February 24, 2015
Nicole D. Wilson, North Las Vegas, Nevada, pro se.
Jaime L. Preciado, Esquire, San Francisco, California, for the agency.
M. Bradley Flynn, Esquire, Southfield, Michigan, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 This appeal is before us on the administrative judge’s September 2, 2014
order certifying for interlocutory review her ruling that the Board has jurisdiction
over the appellant’s demotion because she occupied a nonscreener position with
the agency’s Transportation Security Administration (TSA). We AFFIRM this
ruling as MODIFIED, VACATE the order that stayed further processing of the
appeal, and RETURN this case to the regional office for further adjudication
consistent with this decision.
2
BACKGROUND
¶2 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the
burden of proving by preponderant evidence that her appeal is within the Board’s
jurisdiction. 1 5 C.F.R. § 1201.56(a)(2)(i).
¶3 Because the appellant works for the TSA, the Aviation and Transportation
Security Act (ATSA) applies to this case. See Lara v. Department of Homeland
Security, 97 M.S.P.R. 423, ¶ 9 (2004). Under the ATSA, TSA employees are
covered by the personnel management system that is applicable to employees of
the Federal Aviation Administration (FAA), except to the extent that the
Administrator for TSA modifies that system. 2 Pub. L. No. 107-71, § 101(a),
115 Stat. 597, 601 (2001) (codified at 49 U.S.C. § 114(n)); Connolly v.
Department of Homeland Security, 99 M.S.P.R. 422, ¶ 9 (2005). Pursuant to the
FAA system, individuals who meet the definition of an “employee”
under 5 U.S.C. § 7511(a)(1) generally are entitled to appeal adverse actions to the
Board. 3 Coleman v. Department of Homeland Security, 101 M.S.P.R. 564, ¶ 4
(2006) (citing Goldberg v. Department of Transportation, 97 M.S.P.R. 441, ¶ 6
(2004) (holding that FAA employees may appeal involuntary reductions in pay
1
Preponderant evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
2
The ATSA grants this authority to the Under Secretary of Transportation for Security.
See 49 U.S.C. § 114(n); see also 49 U.S.C. § 44935 (likewise referring to the Under
Secretary when discussing TSA screener personnel). However, that position is now
designated as the Administrator of TSA. See Wilke v. Department of Homeland
Security, 104 M.S.P.R. 662, ¶ 5 n.3 (2007); see also 49 C.F.R. § 1500.3.
3
In this matter, it is undisputed that the appellant meets the definition of “employee”
set forth at 5 U.S.C. § 7511(a)(1)(B)(i). Initial Appeal File (IAF), Tab 40 at 4-5,
Tab 42 at 4.
3
and grade to the Board)). However, TSA screener personnel are exempted from
this entitlement under another provision of the ATSA. 4 49 U.S.C. § 44935 note;
Conyers v. Merit Systems Protection Board, 388 F.3d 1380, 1382-83 (Fed. Cir.
2004); Brooks v. Department of Homeland Security, 95 M.S.P.R. 464, ¶ 13
(2004).
¶4 Effective February 9, 2014, the agency demoted the appellant from a
position that is referred to in agency records both as a Supervisory Transportation
Security Officer (TSO) (Coordination Center) and a Supervisory Coordination
Center Officer (SCCO) to the position of Transportation Security Officer. IAF,
Tab 1 at 8, Tab 4 at 13, Tab 8 at 15, 37, Tab 40 at 4-5, Tab 45 at 6. Both the
appellant’s prior and new positions are in the agency’s 1802 occupational series.
IAF, Tab 7 at 55 (reflecting that, under the agency’s Office of Professional
Responsibility (OPR) Appellate Board Handbook, TSA Management Directive
(MD) 1100.77-1, § A(14) (Sept. 30, 2013), the 1802 occupational series includes
Coordination Center officers, Supervisory TSOs, and TSOs, among others). The
appellant timely filed the instant appeal of her demotion. IAF, Tab 1 at 2, 4-6,
Tab 5 at 6. The agency moved to dismiss the appeal for lack of jurisdiction,
arguing that the appellant was a screener. IAF, Tab 4. After holding a
jurisdictional hearing, the administrative judge denied the agency’s motion and
certified for interlocutory review her ruling that the appellant was not a screener. 5
4
The exemption to the Board’s jurisdiction applies both to supervisory and
nonsupervisory screeners. Spain v. Department of Homeland Security, 99 M.S.P.R.
529, ¶ 9 (2005), aff’d, 177 F. App’x 88 (Fed. Cir. 2006).
5
The agency moved for certification of the administrative judge’s decision to hold a
jurisdictional hearing, arguing that the appellant had failed to make a nonfrivolous
allegation warranting such a hearing. IAF, Tab 21 at 2, Tab 22 at 4-5, 9-10. The
administrative judge properly denied this motion based on her conclusion that the
record on jurisdiction needed to be developed further. IAF, Tab 24; see 5 C.F.R.
§ 1201.92(b) (in the absence of the threat of an undue harm to a party or the public,
certification is only appropriate if an immediate ruling will materially advance the
4
IAF, Tab 42 at 14-15. We find that this certification was proper in light of the
lack of guidance on this issue. 5 C.F.R. §§ 1201.91-1201.92.
¶5 The administrative judge found the appellant did not screen passengers,
baggage, or cargo. IAF, Tab 42 at 7-13. Although the agency argued that it had
designated all employees in the 1802 classification series as screeners, and thus
without Board appeal rights, the administrative judge concluded that the agency
was without authority to deny these rights to nonscreeners. IAF, Tab 42 at 13-14.
The agency disagrees with the administrative judge’s findings. 6 Tab 45 at 4, 6-8,
10-11. We AFFIRM the administrative judge’s findings as MODIFIED to find
that the agency did not designate SCCOs as screeners, still finding that the
completion of the proceeding). After the hearing was held and she made her ruling on
jurisdiction, the administrative judge certified her ruling. IAF, Tab 42 at 14-15.
6
The agency further argued that the TSA Administrator exercised his authority under
49 U.S.C. § 114(n) to modify the FAA personnel management system to preclude the
Board’s jurisdiction over adverse actions taken against SCCOs. Id. (providing that the
TSA Administrator “may make such modifications to the [FAA] personnel management
system with respect to [TSA] employees as [he] considers appropriate”); IAF, Tab 7
at 7-8, 41-42 (citing the agency’s MD 1100.75-3, Addressing Unacceptable
Performance and Conduct, § J(2) (June 3, 2013) to argue that the TSA Administrator
has made the claimed modification). It is undisputed that individuals determined by the
Administrator to be necessary to carry out the screening functions under section 44901
lack Board appeal rights. Conyers v. Merit Systems Protection Board, 388 F.3d 1380,
1382-83 (Fed. Cir. 2004); Brooks v. Department of Homeland Security, 95 M.S.P.R.
464, ¶ 13 (2004). The threshold issue in this case, however, is whether the
Administrator has determined that the appellant’s position is necessary to carry out
screening functions. Only if this question is answered in the affirmative is it necessary
to consider the agency’s position that the Board lacks the authority to review such a
determination. Here, however, there is no indication in the record that the
Administrator determ ined that the appellant’s position was necessary to carry out
screening functions. Thus, there is no indication that the Admin istrator deemed all of
the positions within the 1802 occupational series, under which the appellant’s position
was classified, as necessary to performing screening functions. Accordingly, because
there is no indication that the Administrator determ ined the appellant’s position or
occupational series as necessary to carry out screening functions, section 44935 does
not deprive the Board of jurisdiction to consider this appeal.
5
appellant was a nonscreener who could appeal her demotion to the Board. We
return this appeal to the regional office for further adjudication.
ANALYSIS
The administrative judge properly determined that the appellant did not perform
screening functions.
¶6 The administrative judge found that the appellant was not a screener
excluded from Board appeal rights. IAF, Tab 42 at 14. The agency argues that
the appellant was a screener because she performed functions connected to, and
supporting, screening functions. IAF, Tab 45 at 6-8. We find that, because the
appellant did not directly perform screening functions, she is entitled to appeal
her demotion to the Board.
¶7 As discussed above, an individual who carries out screening functions
under section 44901 of Title 49 may not appeal an adverse action to the
Board. 7 49 U.S.C. § 44935 note. Section 44901 requires the “screening of all
passengers, and property, including United States mail, cargo, carry-on and
checked baggage.” 49 U.S.C. § 44901(a). The ATSA also lists a number of
employment standards for screeners that anticipate that individuals in these
positions will have direct contact with passengers and property. 49 U.S.C.
§ 44935(f). For example, the standards refer to screeners as working in “an
active checkpoint environment,” operating screening equipment, reading airline
tickets, and “performing physical searches” of baggage and “pat-downs” of
passengers. 49 U.S.C. § 44935(f)(1)(B), (C)(ii).
7
The only definition of screening in chapter 449 of Title 49 is with reference to air
cargo on passenger aircraft. See 49 U.S.C. § 44901(g)(5) (defining screening of air
cargo on passenger aircraft as “a physical examination or non-intrusive methods of
assessing whether cargo poses a threat to transportation security”). The TSA
regu lations do not define screening. However, its regulation on “[s]creening of
individuals and property” provides that its scope includes “the inspection of
individuals, accessible property, checked baggage, and cargo.” 49 C.F.R.
§ 1546.207(a).
6
¶8 After conducting a thorough review of the record, including witness
testimony, the administrative judge concluded that the appellant was not a
screener. 8 IAF, Tab 42 at 14. She examined the appellant’s duties, which she
found did not include screening passengers, baggage, or cargo. Id. at 10-12. She
also found that the appellant’s position differed from that of a screener with
regard to training and uniform requirements, and was subject to a different
timekeeping system. 9 Id. at 8, 12-13.
¶9 The administrative judge further found that, because the appellant was
employed in the Coordination Center, she was not required to maintain
certification as a screener. Id. at 8. The agency does not dispute this finding, but
argues, in essence, that this distinction between Supervisory TSOs who work in a
Coordination Center and those who do not is insignificant. IAF, Tab 45 at 6. The
agency notes that prior experience as a screener is a prerequisite for those, like
the appellant, working in a Coordination Center. Id. However, we find the
distinction significant because an annual proficiency review is a statutory
requirement for screeners. 49 U.S.C. § 44935(f)(5). The fact that the appellant
was not subject to such a requirement belies her status as a screener. Therefore,
we agree with the administrative judge that the fact that the appellant was not
required to maintain her screening certification suggests that she was not working
as a screener prior to her demotion.
8
We decline to disturb the administrative judge’s factual determ inations because the
order certifying this interlocutory appeal reflects that she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions on issues of
credib ility. See Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987).
9
Individuals who perform screening, and their supervisors, are to be in uniform.
49 U.S.C. §§ 44901(b), 44935(j). The admin istrative judge found that, at the time of
her demotion, the appellant was not subject to a uniform requirement, wh ile those
directly involved in screening were. IAF, Tab 42 at 13. The agency has not disputed
this finding. See generally IAF, Tab 45.
7
¶10 The agency argues that the administrative judge erred in determining that,
to be a screener, an employee must be physically involved in screening
passengers, baggage, or cargo. 10 IAF, Tab 45 at 8. Based on the statutory
language above, we agree with the administrative judge that Congress intended
screening to involve, at a minimum, direct contact with passengers, mail, cargo,
or carry-on or checked baggage. Therefore, we find that the duties that the
appellant performed that were related to screening did not exempt her from the
right to appeal her demotion to the Board.
¶11 We also do not agree with the agency that the administrative judge
improperly discredited an agency witness who testified that Coordination Center
officers were necessary to the agency’s screening function. Id. at 8-9. The
administrative judge credited the witness’s testimony regarding the duties
performed by these officers, but disagreed with her characterization of these
functions as screening duties. IAF, Tab 42 at 9, 13. This characterization was
not a factual assertion, but rather a legal conclusion by the witness, which the
administrative judge was free to disregard. See Black’s Law Dictionary 329
(9th ed. 2009) (defining a factual conclusion as one “drawn from observed or
proven facts,” and a legal conclusion as “[a]n inference on a question of law,
10
According to the agency, the appellant was a screener within the meaning of the
ATSA because some of her duties were connected to, and supported, screening
functions at the airport, as part of a “multilayered screening approach.” IAF, Tab 45
at 6-8. The agency provides examples of these duties, such as reporting metrics relating
to screening to headquarters; monitoring closed-circuit televisions within the airport,
including screening areas; notifying and recalling screen ing personnel in the event of an
emergency; dispatching screening personnel to checkpoints; and implementing a
program to ensure the continuation of essential security functions in the event of an
unexpected disruption in operations. Id. at 6-7. Further, the agency argues that the
appellant was “essential staff,” required to report to duty even in a government
shutdown. Id. at 7. While we are sympathetic to the agency’s need to employ
individuals other than screeners to ensure airport security, we agree with the
administrative judge that such a broad definition of screening threatens to include
virtually all TSA employees within its ambit, effectively eviscerating the Board appeal
rights guaranteed to nonscreeners by 49 U.S.C. § 40122(g). IAF, Tab 42 at 13.
8
made as a result of a factual showing, no further evidence being required”); cf.
King v. Department of Veterans Affairs, 105 M.S.P.R. 21, ¶ 16 n.2 (2007)
(holding that parties may not stipulate to legal conclusions).
¶12 Further, we agree with administrative judge that the documentary evidence
suggests that the agency itself considers SCCOs to be nonscreeners. IAF, Tab 42
at 4-6. According to the agency, it has designated all positions in the 1802
occupational series, including SCCOs, as necessary to the screening function
under a job analysis tool (JAT) and the agency’s MD 1100.77-1, § A(14). IAF,
Tab 7 at 8-10, Tab 45 at 8-9, 11. The JAT reflects that Supervisory TSOs
perform and supervise screening functions. IAF, Tab 7 at 65-66. However, as the
agency acknowledges, the JAT further provides that, when assigned to a
Coordination Center, a Supervisory TSO like the appellant “does not perform or
supervise screening functions.” 11 IAF, Tab 7 at 66, Tab 45 at 5. Based on this
distinction in the JAT, we are not persuaded that it supports the agency’s claims
that the TSA Administrator has designated SCCOs as necessary for screening.
¶13 The MD 1100.77-1 also does not designate SCCOs as screeners. It
provides that “as used in this policy,” the title TSO includes Coordination Center
officers. IAF, Tab 7 at 55. The MD 1100.77-1 concerns the procedures for the
OPR Board, an internal agency body that reviews and decides adverse action
11
The agency argues that the series 1802 designation is a “classification” over wh ich
the Board lacks jurisdiction. IAF, Tab 45 at 5, 9. The agency is correct that the Board
generally lacks jurisdiction over the proper classification of a position. Saunders v.
Merit Systems Protection Board, 757 F.2d 1288, 1290 (Fed. Cir. 1985). However, we
do not determine in this appeal whether the classification of the appellant’s position
was correct. Rather, we are concerned only with her demotion. Cf. Russell v.
Department of the Navy, 6 M.S.P.R. 698, 711 (1981) (find ing that, under certain
circumstances, a change in job classification can result in a reduction in grade
appealable to the Board). The administrative judge properly looked at the JAT, among
other factors, to determine whether the appellant was a screener. See IAF, Tab 42 at 4
(noting the appellant’s classification series within the discussion of whether she
performed screening duties).
9
appeals by TSOs, including Supervisory TSOs. Id. at 54-55. The agency has
pointed to no provision of the MD 1100.77-1 suggesting that the directive
describes or designates TSOs or SCCOs as performing screening functions. See
id. at 8 (containing the agency’s argument). Likewise, we have been unable to
locate such a designation. Id. at 52-59. Therefore, we do not find the
MD 1100.77-1 supports the conclusion that SCCOs are screeners. 12
ORDER
Accordingly, we AFFIRM AS MODIFIED the administrative judge’s ruling that
the appellant was entitled to appeal her demotion from her nonscreener position,
12
The administrative judge also found, without reaching a conclusion as to whether
such a designation had been made, that the TSA is without authority to deny the Board
appeal rights of SCCOs by designating them as nonscreener personnel. IAF, Tab 42
at 6-7, 13-14. The agency argues that this finding was legal error. IAF, Tab 45
at 10-11. We find it unnecessary to reach the issue of the scope of the Admin istrator’s
authority because we are not persuaded that the Administrator has designated SCCOs as
necessary to carry out screening functions. Therefore, we MODIFY the administrative
judge’s finding in this regard, still hold ing that the appellant, as an SCCO, may appeal
to the Board.
10
VACATE the stay order, and RETURN this matter to the Western Regional
Office for further adjudication consistent with this interlocutory decision.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.