MSPB Vacates Decision Denying Corrective Action to TSA Whistleblower in Whistleblower Protection Act Case

The Merit Systems Protection Board (MSPB) has vacated the Administrative Judge’s (AJ) decision in Miller v. Department of Homeland Security, holding that the AJ erroneously concluded that Miller’s disclosures were not protected under the Whistleblower Protection Act (WPA).  Miller, a Transportation Security Specialist for the Transportation Security Administration (TSA) alleged that he was retaliated against for raising concerns about the proposed changes in TSA’s standard operating procedures (SOPs) for explosives screening at airports.  In particular, Miller claimed that the agency violated the WPA by eliminating some of his leadership duties and proposing to suspend him for 14 days because he criticized the changes in the SOPs that he reasonably believed posed a substantial and specific danger to public safety.

The Board’s AJ held that Miller’s disclosures were not protected under the WPA because he did not have a reasonable belief that the proposed changes to the SOPs would make it easier to place explosive devices on an aircraft.  In reaching its decision, the AJ held that Miller’s claims were based on his work experience rather than specific education or training related to explosives and further, management officials did not agree with his findings.  The MSPB rejected the AJ’s conclusions, holding that the standard for determining the reasonableness of a complainant’s belief is “based on facts known to and readily ascertainable by him.”  Finding that Miller had relevant experience in attempting to pass explosive contaminants through screening, the MSPB held that Miller had sufficient experience to support a reasonable belief in the “fallibility of the [new SOPs].”  Accordingly, the MSPB vacated the initial decision denying corrective action to Miller and remanded the case to the AJ.

Scott Oswald and Nicholas Woodfield at The Employment Law Group® law firm are representing Mr. Miller.   For more information about the firm’s Whistleblower Practice and the Whistleblower Protection Act, click here.

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