                          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.
