American Federation of Government v. Stone

• Citation: 502 F.3d 1027
• Decision Date: 05 September 2007
• Docket Number: No. 05-15206.,05-15206.
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1; John Gavello, Plaintiffs-Appellants, v. David M. STONE; Transportation Security Administration; U.S. Department of Homeland Security; Kip Hawley, Administrator, Transportation Security Administration, Department of Homeland Security, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

502 F.3d 1027

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1; John Gavello, Plaintiffs-Appellants, v. David M. STONE; Transportation Security Administration; U.S. Department of Homeland Security; Kip Hawley, Administrator, Transportation Security Administration, Department of Homeland Security, Defendants-Appellees.

No. 05-15206.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 11, 2007.

Filed September 5, 2007.

Mark D. Roth, Joe Goldberg, Gony Frieder, American Federation of Government Employees AFL-CIO, Washington, DC, for the appellants.

William G. Kanter, Mark W. Pennak, U.S. Department of Justice, Washington, DC, for the appellees.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CV-04-01274-CW.

Before: A. WALLACE TASHIMA and W. FLETCHER, Circuit Judges, and H. RUSSEL HOLLAND,^* District Judge.

WILLIAM A. FLETCHER, Circuit Judge:

Plaintiffs-Appellants American Federation of Government Employees, Local 1 ("AFGE") and John Gavello appeal the district court's dismissal of their action against the Administrator of the Transportation Security Administration ("TSA") in his official capacity. The district court held that Plaintiffs-Appellants were not entitled to judicial review of their claims that the TSA violated their First Amendment rights by disciplining and then discharging Gavello, a TSA security screener, for engaging in union activities. The district court also held that AFGE lacked standing.

We reverse. If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly. We conclude that the statutory scheme governing TSA security screeners does not express a clear intention on the part of Congress to preclude judicial review of screeners' constitutional claims. The district court therefore has subject matter jurisdiction over Plaintiffs-Appellants' action. We further conclude that AFGE has standing.

I. Background

For purposes of this decision, we accept all of the allegations in Plaintiffs-Appellants' complaint as true. The complaint alleges that John Gavello began working as a security screener at Oakland International Airport on March 30, 2003. In October 2003, Gavello spoke to a screening supervisor and a screening manager about his plans to distribute and post AFGE literature during break times. Gavello posted union materials in the employee break room and made union forms available to fellow employees throughout November 2003.

In response to Gavello's union activities, TSA management allegedly began "building a file against Mr. Gavello." On November 20, Gavello received what the complaint describes as a "written verbal warning" for conducting union activities on the job. The next day, November 21, Gavello was called to a manager's office and asked various questions about his union activities. He refused to respond and was subsequently placed on paid administrative leave while TSA management investigated whether he had engaged in union activities while on duty.

The TSA permitted Gavello to return to work on December 5, 2003. Shortly thereafter, he received a "Memorandum of Counseling" "for speaking on behalf of other employees, asking for written verification of policies, and posting union materials before receiving approval from TSA management." He also received a "Letter of Warning" related to his activities.

On February 20, 2004, Gavello mailed a "second step grievance" to Deputy Federal Security Director Calvin Yuen "request[ing] written procedures regarding baggage inspection swiping and sampling as they are not currently included in the [TSA's] standard operating procedures." The words "cc: AFGE Legal Counsel" appeared at the end of Gavello's grievance letter. The TSA terminated Gavello six days after he sent the letter. The TSA justified its action by stating that Gavello improperly disclosed sensitive security information to an unauthorized party, namely, AFGE's legal counsel.

At the time of his termination, Gavello had been employed by TSA for less than one year and was therefore considered a probationary screener. The parties in this case agree that "there is no administrative scheme that would afford probationary TSA screeners, such as John Gavello, with any administrative forum in which to seek relief for [their] discharge." When Congress established the TSA and federalized airport security screeners in late 2001, it set out specific hiring and training requirements for TSA security screeners. See, e.g., Aviation and Transportation Security Act ("ATSA"), Pub.L. No. 107-71, § 111(a), 115 Stat. 597, 616-20 (2001) (codified at 49 U.S.C. § 44935(e)-(j)). It then included a catchall provision giving the TSA Administrator significant discretion over the employment of security screeners: "Notwithstanding any other provision of law, the [TSA Administrator] may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the [Administrator] determines to be necessary to carry out . . . screening functions." ATSA § 111(d), 115 Stat. at 620 (codified at 49 U.S.C. § 44935 (note)); see also H.R. Conf. Rep. No. 107-296, at 64 (2001), reprinted in 2002 U.S.C.C.A.N. 589, 600 (confirming that Congress intended for the TSA Administrator to have "wide latitude to determine the terms of employment of screeners"); id. ("[P]articipants in this Federal security workforce will not be able to strike or engage in work stoppages, and can be fired at the discretion of the [Administrator] if they are not able to adequately perform their duties.").

Pursuant to its catchall authority, the TSA Administrator issued a Human Resources Management Letter dated July 29, 2002, which declared that all screeners are subject to a one-year probationary period and "may be terminated at any time" during that period. HRM Letter 300-2, ¶ 5(g)(1) (July 29, 2002). Although the letter provides that the TSA will "state the reason for the termination" of probationary screeners, it also provides that such screeners have "no right of reply" and may not bring an administrative appeal. Id. ¶¶ 5(g)(4), 5(I); see also Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1382 (Fed. Cir.2004). By contrast, non-screener TSA employees are covered by the "personnel management system" of the Federal Aviation Administration ("FAA"). See ATSA § 101(a), 115 Stat. at 601 (codified at 49 U.S.C. § 114(n)). The FAA's personnel management system, which operates parallel to the Civil Service Reform Act of 1978 ("CSRA"), allows employees, including employees with less than one year of service, to appeal personnel actions to the Merit Systems Protection Board ("MSPB") and to seek judicial review of MSPB decisions. See 49 U.S.C. § 40122(g).

Having no administrative recourse, Plaintiffs-Appellants filed suit in federal district court on April 1, 2004, claiming that the TSA violated their First Amendment speech and associational rights "by penalizing Mr. Gavello's exercise of his legal right of advocacy of union membership." According to the complaint, approximately 50 Oakland security screeners had joined AFGE since Gavello began his organizing efforts, but his termination "has [had] a chilling effect on other screeners." Plaintiffs-Appellants requested the following relief: (1) a declaration that the TSA's discipline and dismissal of Gavello violates Plaintiffs-Appellants' First Amendment rights; (2) an order rescinding the Memorandum of Counseling, Letter of Warning, and Letter of Termination from Gavello's personnel records; (3) the restoration of Gavello's employment; (4) back pay with interest and the restoration of all benefits Gavello lost during his period of termination; (5) an injunction preventing the TSA from retaliating against Gavello and other AFGE members; and (6) attorney's fees and costs.

Defendants-Appellees ("the government") responded by filing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The government argued that by excluding TSA screeners from the protections of the CSRA or the FAA personnel management system, and by granting the TSA Administrator unfettered discretion to determine screeners' employment terms and conditions, Congress intended to preclude judicial review of screeners' constitutional claims. The government also argued that AFGE lacked standing to sue either on its own behalf or on behalf of Gavello.

The district court accepted these arguments and issued an order on December 2, 2004, dismissing the complaint with prejudice. The court reasoned that the CSRA is a "comprehensive and exclusive scheme to govern federal personnel matters" and that Congress's decision not to extend the CSRA's protections to TSA screeners therefore indicated that Congress did not intend to permit screeners to obtain judicial review of personnel decisions. The court explained that AFGE lacked standing because the complaint did not allege that Gavello was actually a member of AFGE, and because Gavello's claims were unreviewable. Plaintiffs-Appellants timely appealed.

II. AFGE's Standing

The district court concluded that AFGE had no standing to sue either on its own behalf or on behalf of Gavello. The court rested its decision partly on the ground that Gavello was not entitled to review of his First Amendment claims and partly on the ground that the complaint did not specify that Gavello was an AFGE member. As we explain in the next section, Gavello's claims are reviewable. We now conclude that, even if Gavello is not an AFGE member, AFGE satisfies both the constitutional and prudential requirements for standing.

Plaintiffs-Appellants' complaint does not directly state that Gavello is an AFGE member. We are required, however, to "construe the complaint in a light most favorable...