Fedweek Legal

In Zambito v. Dept. of Homeland Security, (SF-0752-04-0834-I-1), decided December 2, 2005, the Merit Systems Protection Board held that the general jurisdictional guidelines provided by 5 U.S.C. section 7511 also apply to appeals by Transportation Security Administration (TSA) employees, with the exception of employees defined as “screeners.” The Board reasoned that while the Aviation and Transportation Security Act (ATSA) is applicable to appeals by TSA employees, under ATSA, TSA employees are covered by the Federal Aviation Administration’s (FAA) personnel management system. FAA’s guidelines provide that the removal of an individual who meets the definition of an “employee” under 5 U.S.C. section 7511 may be appealed to the Board.

Thus, TSA employees would have the same appeal rights as other federal employees absent any explicit modification by the Under Secretary of Transportation for Security. With regard to screeners, the Board left undisturbed its decision that screeners, unlike other employees, are entitled to appeal their removals only to TSA’s Disciplinary Review Board, and not to the MSPB. See Connolly v. Dept. of Homeland Security, 99 M.S.P.R. 422, paragraphs 12-16 (2005). The Board, however, found that no such modification existed for other classes of TSA employees.

In this case, TSA appointed the appellant subject to a one-year trial period in March 2002. In September 2002, TSA appointed the appellant to a supervisory position as a Screening Manager (an exception to TSA’s definition of “screener”) subject to a one-year trial period. In December 2002, the appellant began serving as an acting Deputy Assistant Federal Security Director (Deputy AFSD), and in November 2003, TSA appointed him to this position subject to a one-year trial period. Then, in August 2004, TSA removed the appellant for alleged misconduct. When the appellant appealed his removal, the administrative judge dismissed the appeal for lack of jurisdiction applying portions of TSA Management Directive No. 1100.75-1 (“Addressing Performance and Conduct Problems”) and No. 1100.31-1 (“Trial Periods”).

The Board, however, pointed out that it recently held that TSA Management Directive No. 1100.75-1 did not modify the FAA’s personnel management system and that TSA employees who meet the definition of “employee” in 5 U.S.C. section 7511 remain entitled to appeal their removals to the Board. See Connolly, at paragraphs 12-16. Accordingly, the Board held, the administrative judge should have applied 5 U.S.C. section 7511 to determine whether the appellant could appeal his removal to the Board.

Unfortunately for the appellant, the outcome of his appeal remains unchanged. Under both TSA Management Directive No. 1100.75-1 and section 7511, the appellant must have had at least one year of current continuous service in the same or similar position to have proper jurisdiction. 5 U.S.C. section 7511 does not permit time spent in a position on detail or in an acting capacity to be used to establish one year of current continuous service. Further, the Board determined that the appellant’s Screening Manager and Deputy AFSD positions were not the same or similar because he performed a significant amount of work as a Deputy AFSD that was not required of a Screening Manager.