TSA Workers Win Right to Bring Constitutional Claims

Transportation Security Administration (TSA) workers won an important victory in front of the 9th Circuit last week, as reported by Stephen Barr in the Washington Post:

Even though the government's 43,000 airport screeners do not have full civil service rights, they still can file claims under the Constitution, a U.S. appeals court has ruled.

The ruling came in a case brought by a union and John Gavello, who had worked as a federal security screener at the Oakland International Airport. He was fired in 2004 after being warned by his bosses against posting union materials without their approval . . . .

Writing on behalf of a three-judge appeals court panel, Judge William A. Fletcher said, "If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly."

Fletcher sent the case back to the district court, saying that the court has jurisdiction over Gavello's claims and that the AFGE has standing to bring the case.

The Gavello case is part of a larger effort by organized labor to win bargaining rights and union protections for security officers at the TSA.

This is indeed an important development as it vindicates the idea that federal workers should have similar First Amendment rights as their state and local employee counterparts.  Even federal employees with civil service protections under the Civil Service Reform Act of 1978, however, currently have a less meaningful free speech remedy as a result of being required to bring these claims to the Merit Systems Protection Board (MSPB) rather than directly to federal court.

In a recent paper, Whither the Pickering Rights of Federal Employees, I established, through an analysis of all federal employee First Amendment free speech cases under the Pickering framework, that there is no meaningful redress for federal employees under the current administrative scheme as not a single federal employee had been successful on the merits in front of the MSPB or Federal Circuit. 

I therefore argue for the reestablishment of a direct constitutional tort claim under Bivens for these types of cases, which would require the overturning of the Supreme Court case of Bush v. Lucas.

PS