Conyers v. Hawley ( 2009 )

07-4095-cv
Conyers v. Hawley
UNITED STATES COURT OF APPEALS
F OR THE S ECOND C IRCUIT
August Term, 2008
(Argued: December 9, 2008 Decided: March 3, 2009)
Docket No. 07-4095-cv
V INCENT C URTIS C ONYERS,
Plaintiff-Appellant,
—v.—
G ALE D. R OSSIDES, in her official capacity as Acting Administrator, Transportation
Security Administration, United States Department of Homeland Security,*
Defendant-Appellee.
Before:
K EARSE, R AGGI, and L IVINGSTON, Circuit Judges.
___________________
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Sandra J. Feuerstein, Judge) dismissing plaintiff’s claims under the
Administrative Procedure Act, the Veterans Employment Opportunities Act, and the Fifth
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Administrator
Gale D. Rossides is automatically substituted for Kip Hawley as defendant in this case.
1
and Fourteenth Amendments to the United States Constitution arising out of plaintiff’s
unsuccessful application for a security screener position with the Transportation Security
Administration. The district court correctly determined that it lacked jurisdiction to review
plaintiff’s Administrative Procedure Act claim, and we hold that defendant is entitled to
judgment on the pleadings with respect to plaintiff’s Veterans Employment Opportunities
Act and constitutional claims.
A FFIRMED.
V INCENT C URTIS C ONYERS, Plaintiff-Appellant, pro se.
T HOMAS A. M CF ARLAND, Assistant United States Attorney (Varuni Nelson,
Assistant United States Attorney, of counsel), for Benton J. Campbell, United
States Attorney for the Eastern District of New York, Central Islip, New York,
for Defendant-Appellee.
R EENA R AGGI, Circuit Judge:
Plaintiff Vincent Curtis Conyers, proceeding pro se, appeals from a July 30, 2007
judgment of the United States District Court for the Eastern District of New York (Sandra
J. Feuerstein, Judge), dismissing his complaint against the Administrator of the
Transportation Security Administration (“TSA”), for defendant’s 2002 refusal to hire
plaintiff as an airport security screener. We agree that the district court lacked jurisdiction
to review plaintiff’s Administrative Procedure Act claim, and we hold that defendant is
2
entitled to judgment on the pleadings with respect to plaintiff’s Veterans Employment
Opportunities Act and constitutional claims. We therefore affirm.
I. Background
We briefly review the relevant statutory framework before discussing the factual
background and legal merits of Conyers’s appeal.
A. The Aviation and Transportation Security Act
Following the “terrorist hijacking and crashes of passenger aircraft on September 11,
2001, which converted civil aircraft into guided bombs for strikes against the United States,”
Congress identified a need for “a fundamental change in the way [the United States]
approaches the task of ensuring the safety and security of the civil air transportation system.”
H.R. Rep. No. 107-296, at 53 (2001) (Conf. Rep.), reprinted in 2002 U.S.C.C.A.N. 589, 590.
Accordingly, on November 19, 2001, it enacted the Aviation and Transportation Security Act
(“ATSA”), Pub. L. No. 107-71, 115 Stat. 597 (2001) (codified principally in scattered
sections of 49 U.S.C.). The ATSA “broadly expand[ed] the government’s control over, and
active role in, aviation security” through the creation of the TSA. Kent C. Krause, “Putting
the Transportation Security Administration in Historical Context,” 68 J. Air L. & Com. 233,
244 (2003).
3
The TSA is headed by an Administrator,1 whom Congress has made “responsible for
security in all modes of transportation, including,” most notably, “civil aviation security.”
49 U.S.C. § 114(d). The Administrator is required, inter alia, to “provide for the screening
of all passengers and property . . . that will be carried aboard a passenger aircraft operated
by an air carrier or foreign air carrier in air transportation or intrastate air transportation.”
Id. § 44901(a).2 To ensure that this mandate was carried out promptly, the ATSA required
the Administrator, “[n]ot later than 1 year after” the passage of the Act, to “deploy at all
airports in the United States where screening is required . . . a sufficient number of Federal
screeners, Federal Security Managers, Federal security personnel, and Federal law
enforcement officers to conduct the screening of all passengers and property” as required by
statute. Id. § 44901 note. The instant action concerns an application for a security screener
position filed by plaintiff Conyers during this critical one-year period.
1
Following the passage of the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135, the title of the head of the TSA was changed from “Under Secretary,” as the
post is referred to in the ATSA, see 49 U.S.C. § 114(b)(1), to “Administrator.” See
American Fed’n of Gov’t Employees, AFL-CIO v. Loy, 281 F. Supp. 2d 59, 61 n.1 (D.D.C.
2003) (noting this change), aff’d 367 F.3d 932 (D.C. Cir. 2004); see also 49 C.F.R. § 1500.3(“Administrator means the Under Secretary of Transportation for Security identified in 49
U.S.C. 114(b) who serves as the Administrator of the Transportation Security
Administration.”). In accordance with TSA regulations, in this opinion, we will use the term
“Administrator,” rather than “Under Secretary” or “Assistant Secretary.”
2
Many of the Administrator’s other duties are catalogued in Springs v. Stone, 362 F.
Supp. 2d 686, 690, 695 (E.D. Va. 2005).
4
The ATSA contains two sets of provisions that address the means by which TSA
applicants and employees are to be assessed, hired, evaluated, and terminated. First, Section
101 of the Act provides, in relevant part, that
[t]he personnel management system established by the Administrator of the
Federal Aviation Administration under [49 U.S.C.] section 40122 shall apply
to employees of the Transportation Security Administration, or, subject to the
requirements of such section, the [Administrator] may make such
modifications to the personnel management system with respect to such
employees as the [Administrator] considers appropriate, such as adopting
aspects of other personnel systems of the Department of Transportation.
Id. § 114(n). Section 40122 of Title 49, in turn, provides that “[t]he provisions of title 5” –
that portion of the United States Code dealing with “Government Organization and
Employees” – “shall not apply” to the FAA’s personnel management system, with certain
explicitly listed exceptions, including provisions concerning whistleblower protection,
veterans’ preference in hiring, labor-management relations, and appeals to the Merit Systems
Protection Board. Id. § 40122(g)(2).
Second, the ATSA contains several provisions applicable only to “security screeners.”
For example, the Act mandates that security screeners possess “a high school diploma” or
other equivalent experience; “basic aptitudes and physical abilities, including color
perception, visual and aural acuity, physical coordination, and motor skills”; and the ability
“to read, speak, and write English well enough to” perform various screening-related tasks.
Id. § 44935(f)(1). The Act also requires the Administrator to “provide a preference for the
5
hiring of an individual as a security screener if the individual is a member or former member
of the armed forces.” Id. § 44935(f)(2). Finally, and most broadly, Section 111(d) of the
ATSA provides:
Screener Personnel. . . . Notwithstanding any other provision of law, the
[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 the screening functions [required by the Act]. The [Administrator]
shall establish levels of compensation and other benefits for individuals so
employed.
Id. § 44935 note (internal quotation marks omitted).
The legislative history indicates that “Section 111(d) evolved out of an earlier Senate
provision intended to provide the [Administrator] with authority to hire (i) any necessary
number of screeners, without regard to any limitation on the number imposed by any law or
Executive Order, (ii) but with the employee protections of part III of title 5 applicable to all
screeners hired.” American Fed’n of Gov’t Employees TSA Local 1 v. Hawley, 481 F. Supp.
2d 72, 77 (D.D.C. 2006) (discussing original Senate proposal3 ). An amendment introduced
3
The original proposed language read as follows:
Authorization of Employment – The Secretary of Transportation is authorized
to employ, appoint, and fix the compensation of such a number of individuals
as may be necessary to carry out sections 44901 and 44903 of title 49, United
States Code, in accordance with the provisions of part III of title 5, United
States Code, without regard to any limitation on number of employees imposed
by any other law or Executive Order.
S. 1447, 107th Cong. § 10 (2001).
6
by Senator McCain on October 11, 2001, however, replaced the original proposal with
language substantially identical to the current language of Section 111(d). Id.4 The stated
purpose of this amendment was “‘[t]o authorize the employment, suspension, and termination
of airport passenger security screeners without regard to the provisions of title 5, United
States Code, otherwise applicable to such employees.’” 147 Cong. Rec. S10,520 (daily ed.
Oct. 11, 2001).
Following adoption of this revised language in the final version of the ATSA, several
Members of Congress expressed their understanding that Section 111(d) left many matters
concerning the employment of security screeners “to the discretion of the” TSA, including
“health care, worker’s compensation, and civil rights and whistleblower protection.” 147
Cong. Rec. S11,982 (daily ed. Nov. 16, 2001) (statement of Sen. Rockefeller); see also 147
Cong. Rec. H8313 (daily ed. Nov. 16, 2001) (statement of Rep. Schakowsky) (“It is my
understanding that the Secretary is given the authority to determine whether [screeners] can
4
Senator McCain’s amendment also proposed the addition of a new subsection (e),
which provided as follows: “Strikes prohibited. – An individual employed as a security
screener . . . is prohibited from participating in a strike or asserting the right to strike pursuant
to section 7311(3) or 7116(b)(7) of title 5, United States Code.” 147 Cong. Rec. S10,520
(daily ed. Oct. 11, 2001). This provision was ultimately included in Section 111, which
provides that “[a]n individual that screens passengers or property, or both, at an airport under
this section may not participate in a strike, or assert the right to strike, against the person
(including a governmental entity) employing such individual to perform such screening.”
49 U.S.C. § 44935(i).
7
join a union; participate in the Federal Employees Health Benefit Plan and retirement
options; and be covered by non-discrimination, health and safety, and whistleblower laws.”).5
B. Conyers’s Application for Employment with the TSA and Prior Litigation
On this appeal, we assume the truth of the facts alleged by the plaintiff in his
complaint. See Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008).
In mid-2002, along with more than two million other persons, Conyers applied for
various airport security screener positions with the newly created TSA. See Springs v. Stone,
362 F. Supp. 2d 686, 690 (E.D. Va. 2005) (describing that, “between March and November
2002,” the TSA’s human resources provider “processed 2,198,505 on-line applications and
assessed some 340,000 eligible candidates for screening positions”). On July 19, 2002,
Conyers underwent an employment assessment and was determined to be
“‘Disqualified/Unqualified’” for the position of Supervisory Transportation Security
Screener at Long Island’s MacArthur Airport in Ronkonkoma, New York. Complaint ¶ 20.
The letter informing Conyers of this assessment, which is attached as an exhibit to the
complaint, states that “the TSA is not able to provide any detailed information regarding your
results on the tests or interview. This is a pass/fail assessment system; therefore you will
5
The shorthand version of Section 111(d) provided in the Conference Report reads:
“Notwithstanding any law, the Attorney General may hire, fire, and pay screeners as he
determines necessary.” H.R. Rep. No. 107-296, at 69, reprinted in 2002 U.S.C.C.A.N. at
606. (In the Senate version of the Act, the Attorney General was made “[r]esponsible for
screening, including the hiring and training of screeners.” Id. at 57, reprinted in 2002
U.S.C.C.A.N. at 594.)
8
receive no further information by calling the agency, its employees, or its contractors.” Id.
Ex. 1.
Thereafter, Conyers made “numerous attempts” to “obtain specific information” about
or an “administrative review” of his assessment, but was unsuccessful until 2003, when his
congressional representative was informed that Conyers “did not pass the physical
qualifications examination.” 6 Id. ¶ 22 & Ex. 2. Conyers further alleges that the TSA
determined that his “negative assessment rating was applicable for all employment positions”
for which he had applied. Id. ¶ 23.
On October 21, 2002, Conyers filed an appeal with the Merit Systems Protection
Board (“MSPB”) challenging the TSA’s decision not to select him for the Supervisory
Transportation Security Screener position (the “MSPB Action”). An Administrative Judge
dismissed Conyers’s appeal for lack of subject matter jurisdiction, and the MSPB denied his
petition for review. Conyers first appealed to the United States Court of Appeals for the
Federal Circuit, which affirmed, and he then unsuccessfully sought review by the Supreme
6
The explanation is perplexing because, at least at the time of oral argument, Conyers
had the physical capacity to serve as a member of the National Guard on active duty in Iraq.
In response to a court inquiry, government counsel acknowledged that the TSA’s
determination that Conyers was not physically qualified to perform as a security screener may
have been simply a clerical mistake attributable to the high volume of applications processed
by the TSA in 2002. While we do not pursue the question further because its resolution is
not relevant to our analysis of Conyers’s claims, the Assistant United States Attorney
handling this appeal has agreed to speak with the TSA to ensure careful review of any further
employment application submitted by Conyers, given his professed continued interest in
working for the TSA upon discharge from active military service.
9
Court. See Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380 (Fed. Cir. 2004), cert. denied 543
U.S. 1171, reh’g denied 544 U.S. 969 (2005). The Federal Circuit held that Section 111(d)
of the ATSA “renders inapplicable general federal statutes that otherwise would apply” to
the process of selecting TSA screeners, including the provisions of Title 5 of the United
States Code that would permit an appeal to the MSPB in Conyers’s case. Id. at 1382
(construing 49 U.S.C. § 44935 note).
C. The Instant Case
Two weeks after the Supreme Court denied Conyers’s petition for rehearing in the
MSPB Action, he filed the instant case against the TSA Administrator in the Eastern District
of New York.7 Conyers principally seeks a judgment under the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701 et seq., declaring that the Administrator misconstrued the
ATSA insofar as he (1) did not utilize the FAA’s personnel management system in hiring
security screeners, as Conyers contends is required by ATSA Section 101, 49 U.S.C. §
114(n); and, more specifically, (2) failed to give veterans a hiring preference in the manner
required by the FAA’s system, see 49 U.S.C. § 40122(g)(2)(B). Conyers also seeks an order,
pursuant to the Veterans Employment Opportunities Act (“VEOA”) of 1998, 5 U.S.C. §
3330a et seq., directing the Administrator to comply with the veterans’ preference provisions
7
Conyers’s complaint initially named David M. Stone, the then-Acting Administrator
of the TSA. In the proceedings below, Kip Hawley was substituted as defendant under Fed.
R. Civ. P. 25(d). Current Acting Administrator Gale D. Rossides has now been automatically
substituted as defendant pursuant to Federal Rule of Appellate Procedure 43(c)(2).
10
incorporated in the FAA’s personnel management system and granting him relief pursuant
to 5 U.S.C. § 3330c. Finally, Conyers seeks a declaration that the process used to evaluate
his application violated his due process and equal protection rights under the Fifth and
Fourteenth Amendments. Conyers does not otherwise seek monetary or injunctive relief.
The Administrator filed an answer on August 19, 2005, and, on January 17, 2006,
moved to dismiss Conyers’s complaint for lack of subject matter jurisdiction or, in the
alternative, for judgment on the pleadings. See Fed. R. Civ. P. 12(b)(1), (c). On July 26,
2007, the district court granted dismissal, holding that (1) it lacked jurisdiction over
Conyers’s APA claims because the hiring of security screeners was committed to the TSA’s
discretion under Section 111(d) of the ATSA, (2) it lacked jurisdiction over Conyers’s
VEOA claims because the veterans’ preference provisions he sought to enforce were
rendered inapplicable by Section 111(d), and (3) Conyers’s constitutional claims were barred
by the doctrine of sovereign immunity. See Conyers v. Hawley, No. 05 Civ. 2079, 2007 WL
2219483 (E.D.N.Y. July 26, 2007). Conyers filed a timely notice of appeal.
II. Discussion
A. APA Claims
“On appeal from a judgment entered pursuant to Federal Rule of Civil Procedure
12(b)(1)” for lack of jurisdiction, “we review conclusions of law de novo.” Sharkey v.
Quarantillo, 541 F.3d at 82 (internal quotation marks omitted). “‘The party invoking federal
11
jurisdiction bears the burden of establishing’ that jurisdiction exists.” Id. (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “‘[W]here, as here, the case is at the
pleading stage and no evidentiary hearings have been held,” however, “‘[i]n reviewing the
grant of a motion to dismiss [under Rule 12(b)(1)] we must accept as true all material facts
alleged in the complaint and draw all reasonable inferences in the plaintiff’s favor.’” Id. at
83 (quoting Merritt v. Shuttle, Inc., 245 F.3d 182, 186 (2d Cir. 2001)). Nevertheless, even
“on a motion to dismiss, courts ‘are not bound to accept as true a legal conclusion couched
as a factual allegation.’” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“In determining whether a suit can be brought under the APA, ‘[w]e begin with the
strong presumption that Congress intends judicial review of administrative action.’” Id. at
84 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)).
“However, review under the APA may be excepted where: (i) ‘statutes preclude judicial
review;’ or (ii) ‘agency action is committed to agency discretion by law.’” Natural Res. Def.
Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting 5 U.S.C. § 701(a)).8 “These
exceptions are construed narrowly and apply only if there is ‘clear and convincing evidence
8
We have recently noted that “[i]t is uncertain in light of recent Supreme Court
precedent whether these threshold limitations are truly jurisdictional or are rather essential
elements of the APA claims for relief.” Sharkey v. Quarantillo, 541 F.3d at 87. To the
extent that the Administrator has sought, in the alternative, judgment on the pleadings
pursuant to Rule 12(c), we need not address this question here, as the result in this case
would be the same under either rubric. Cf. id. at 88 n.11 (“To the extent the issues concern
essential elements of the plaintiff’s claims for relief, we exercise our discretion to raise them
sua sponte in order to determine whether there are alternative grounds in the record for
granting the defendant’s unadjudicated 12(b)(6) motion.”).
12
of legislative intention to preclude review.’” Id. (quoting Japan Whaling Ass’n v. Am.
Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986)). Making this determination requires an
examination of both the “‘express language’” of the statute, as well as “‘the structure of the
statutory scheme, its objectives, its legislative history, and the nature of the administrative
action involved.’” Id. (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984)).9
Here, the district court held that it did not have jurisdiction over Conyers’s APA claims
because the Administrator’s determination as to whether the personnel management
provisions of 49 U.S.C. § 114(n) and § 40122(g) – including the veterans’ preference
provisions of § 40122(g)(2)(B) – should be applied to screener applicants is “committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2), specifically, by Section 111(d) of the ATSA,
49 U.S.C. § 44935 note.
At the outset, we note that this particular restriction on the availability of APA review
“applies only in ‘those rare instances where statutes are drawn in such broad terms that in a
given case there is no law to apply.’” Sharkey v. Quarantillo, 541 F.3d at 91 (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)); see also
Schneider v. Feinberg, 345 F.3d 135, 148 (2d Cir. 2003) (stating that exception applies where
“the governing statute or regulations ‘[are] drawn so that a court would have no meaningful
9
As we have noted, “[a]lthough the APA does not itself confer subject matter
jurisdiction, the Federal Question Statute, 28 U.S.C. § 1331, confers jurisdiction over a suit
that ‘arises under’ a ‘right of action’ created by the APA. Because Section 1331 confers
jurisdiction on the district courts, a suit that arises under the APA is properly brought in
district court.” Sharkey v. Quarantillo, 541 F.3d at 84 (citations omitted).
13
standard against which to judge the agency’s exercise of discretion’” (quoting Heckler v.
Chaney, 470 U.S. 821, 830 (1985))). Webster v. Doe, 486 U.S. 592 (1988), provides an
example of such an instance. There, the Supreme Court held that a CIA employee could not
seek APA review of his termination because Section 102(c) of the National Security Act
permitted “termination of an Agency employee whenever the Director ‘shall deem such
termination necessary or advisable in the interests of the United States.’” Id. at 600(emphasis in Webster). The Court observed that “[t]his standard fairly exudes deference to
the Director, and appears to us to foreclose the application of any meaningful judicial
standard of review.” Id. The Court also noted that “the overall structure” of the National
Security Act confirmed this result, insofar as (1) the Act was “[p]assed shortly after the close
of the Second World War,” and gave the Director of the CIA “the responsibility ‘for
protecting intelligence sources and methods from unauthorized disclosure,’” id. at 600-01(quoting 50 U.S.C. § 403(d)(3) (1982)); and (2) “Section 102(c) is an integral part of that
statute, because the Agency’s efficacy, and the Nation’s security, depend in large measure
on the reliability and trustworthiness of the Agency’s employees,” id. at 601.
With this analysis in mind, we now conclude – as has every court that has addressed
similar claims – that the question of whether to utilize the FAA’s personnel management
system in employing or appointing security screeners is a matter committed to the
Administrator’s discretion under ATSA Section 111(d), 49 U.S.C. § 44935 note. See
14
American Fed’n of Gov’t Employees TSA Local 1 v. Hawley, 481 F. Supp. 2d at 90-91[D.D.C.] (holding that, in light of Section 111(d), court had no jurisdiction under APA to
address claim that 49 U.S.C. § 40122(g)(2) should have governed procedure for terminating
TSA screeners); Springs v. Stone, 362 F. Supp. 2d at 701-04 [E.D. Va.] (same); see also
Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006) (holding that, in
light of Section 111(d), TSA was exempt from requirements of Rehabilitation Act); Conyers
v. Merit Sys. Prot. Bd., 388 F.3d at 1381-83 [Fed. Cir.] (holding that, under Section 111(d),
MSPB does not have jurisdiction to review claim of unsuccessful applicant for screener
position); Ray v. U.S. Dep’t of Homeland Sec., No. H-07-2967, 2008 WL 3263550, at *8-10
(S.D. Tex. Aug. 7, 2008) (granting motion to dismiss non-constitutional federal claims
regarding suspension and discharge of TSA screener); Daniels v. Chertoff, No. CV 06-2891,
2007 WL 1140401, at *4-5 (D. Ariz. Apr. 17, 2007) (holding that, in light of Section 111(d),
TSA was exempt from requirements of Rehabilitation Act); Pino v. Hawley, 480 F. Supp.
2d 818, 824-25 (W.D. Pa. 2007) (same); Yeager v. Chertoff, No. C06-0740, 2006 WL
4673439, at *4-5 (W.D. Wash. Nov. 13, 2006) (same); Tucker v. Ridge, 322 F. Supp. 2d 738,
742-43 (E.D. Tex. 2004) (same); Orelski v. Pearson, 337 F. Supp. 2d 695, 703 (W.D. Pa.
2004) (holding that state law claims of terminated screener were preempted by Section
111(d)); Calvin v. United States, 63 Fed. Cl. 468, 473 (2005) (finding that “Section 111[(d)]
of the ATSA . . . governs the employment of screener personnel” in holding that screeners
15
are “appointees” rather than contract employees); United States Dep’t of Homeland Sec. &
Am. Fed’n of Gov’t Employees AFL-CIO, 59 F.L.R.A. 423, 2003 WL 22669101, at *7
(2003) (dismissing petition of labor union seeking to represent screeners in light of
Administrator’s “unfettered discretion [under Section 111(d)] to preclude TSA screeners
from being represented by an organization for the purposes of engaging in collective
bargaining”); cf. American Fed’n of Gov’t Employees Local 1 v. Stone, 502 F.3d 1027, 1035
(9th Cir. 2007) (holding that district court had jurisdiction to hear terminated screener’s
constitutional claims, but noting that “the language Congress used when it enacted ATSA is
quite similar to the statutory language at issue in Webster”); Getzlow v. Chertoff, EEOC
Doc. 0120053286, 2007 WL 1964480, at *3-4 (June 26, 2007) (holding that, while EEOC
retained jurisdiction to hear Rehabilitation Act claim of unsuccessful screener applicant,
under Section 111(d), “the requirements of the Rehabilitation Act cannot negate or override
the ATSA-mandated qualification standards”); Colton v. Huntleigh USA Corp., 121 P.3d
1070, 1072, 1074-76 (Okla. 2005) (holding that former screeners’ state-law claims against
TSA subcontractor for unpaid bonuses accrued prior to full federalization of screener
workforce not preempted by ATSA).
Focusing on the language of Section 111(d), we note first, as do many of the above-
cited cases, that the phrase “[n]otwithstanding any other provision of law” is one that “clearly
signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override
conflicting provisions of any other section,” Cisneros v. Alpine Ridge Group, 508 U.S. 10,
18 (1993); see Conyers v. Merit Sys. Prot. Bd., 388 F.3d at 1382 (quoting Cisneros); Springs
16
v. Stone, 362 F. Supp. 2d at 697 (same), including sections of the statute in which the
notwithstanding clause appears, see generally Liberty Maritime Corp. v. United States, 928
F.2d 413, 417 n.4 (D.C. Cir. 1991) (“[T]he language ‘notwithstanding any other provision
of this chapter or any other Act’ means the same thing as ‘notwithstanding any other
provision of law.’” (emphasis omitted)).10 As the Supreme Court has observed, “[a] clearer
statement is difficult to imagine.” Cisneros v. Alpine Ridge Group, 508 U.S. at 18 (internal
quotation marks omitted, alteration in Cisneros).
Second, Section 111(d) speaks broadly of the Administrator’s authority to “employ,
appoint, discipline, terminate, and fix the compensation, terms, and conditions of
employment of Federal service” for security screeners. 49 U.S.C. § 44935 note. This nearly
comprehensive list of employment-related decisions, along with Section 111(d)’s final
sentence regarding the Administrator’s establishment of “levels of compensation and other
benefits,” id., brings within the reach of the Section precisely the kinds of decisions on which
Conyers focuses here, including whether to make use of the FAA’s personnel management
system in hiring security screeners. Indeed, it is these kinds of decisions that a personnel
management system is designed to regulate. Cf. id. § 40122(g)(1) (providing that the FAA’s
personnel management system “shall, at a minimum, provide for greater flexibility in the
10
We also note that, to the extent we hold here that Section 111(d) permits the
Administrator to exempt security screeners from the provisions of Section 101, our holding
does not “nullify” the latter provision, as Conyers contends. Appellant’s Br. at 25-26.
Rather, it simply “exempts the [Administrator] from applying certain provisions to
employment actions affecting airport security screeners in particular.” Springs v. Stone, 362
F. Supp. 2d at 698. Such an exception is consistent with the ATSA’s general scheme, which
distinguishes between TSA employees generally and security screeners at several points. See
id. at 698-99; supra at [5-8].
17
hiring, training, compensation, and location of personnel” (emphasis added)). In short, we
agree with the Administrator, and the courts cited above, that the “plain text of Section
111(d) clearly signals Congress’s intention to grant the [Administrator] authority to design
a personnel management system for airport security screeners, to include or not include at
the [Administrator’s] discretion provisions of other federal personnel laws, including those
in the FAA’s personnel management system in 49 U.S.C. § 40122(g).” American Fed’n of
Gov’t Employees TSA Local 1 v. Hawley, 481 F. Supp. 2d at 85; see also American Fed’n
of Gov’t Employees Local 1 v. Stone, 502 F.3d at 1030 (describing Section 111(d) as “a
catchall provision giving the TSA Administrator significant discretion over the employment
of security screeners”).
Conyers’s central textual argument is that these broad clauses are “qualified by the
immediate following ‘such a number of individuals’ clause,” which he contends indicates
that Section 111(d) is concerned only with “the size and availability” of the screener
workforce. Appellant’s Br. at 27, 29-30. He asks that we read Section 111(d) as simply
describing the authority of the Administrator to “employ . . . such a number of individuals,”
to “appoint . . . such a number of individuals,” “to discipline . . . such a number of
individuals,” and so on, but not as independently granting the Administrator discretion
regarding whom to “employ,” “appoint,” or “discipline.” Id. at 27-29. We reject this
reading and conclude – as have the courts cited above – that the language of Section 111(d)
plainly gives the Administrator discretion both (1) to “employ, appoint, discipline, terminate,
and fix the compensation, terms, and conditions of employment of Federal service” for
18
screeners, and (2) to do so “for such a number of individuals as the [Administrator]
determines to be necessary to carry out the screening functions [required by the Act].” 49
U.S.C. § 44935 note.
Perhaps most fatal to Conyers’s argument, his reading of the statute would render
superfluous the provision of the ATSA requiring the Administrator to “provide a preference
for the hiring of an individual as a security screener if the individual is a member or former
member of the armed forces.” Id. § 44935(f)(2). If, as Conyers contends, ATSA Section
101, 49 U.S.C. § 114(n), already requires the Administrator to use the FAA’s personnel
management system in hiring screeners, including the veterans’ preference provisions
incorporated in that system, see id. § 40122(g)(2)(B), then § 44935(f)(2) is simply
redundant.11 Established principles of construction preclude such a reading of this statute.
See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of
statutory construction that a statute ought, upon the whole, to be so construed that, if it can
be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”
(internal quotation marks omitted)).12
11
Of course, nothing in the ATSA bars the Administrator, in complying with the
mandate of 49 U.S.C. § 44935(f)(2), from choosing to provide security screeners with the
veterans’ preferences that are afforded under the FAA’s system. We note only that the
inclusion of 49 U.S.C. § 44935(f)(2) in the ATSA provides support for the conclusion that
the Administrator is not independently required to do so by 49 U.S.C. § 114(n).
12
Indeed, although Conyers repeatedly emphasizes that his “harmonious”
interpretation must be correct because it gives effect to every provision of the ATSA,
Appellant’s Reply Br. at 11, and while his papers review the structure and provisions of the
Act in admirable detail, he does not describe how the requirements of § 44935(f)(2) can be
given independent meaning if we endorse his narrow reading of Section 111(d). This
omission is significant insofar as Conyers’s claims are focused primarily on veterans’
19
We further note that the interpretation we adopt today comports with the legislative
history discussed above. See supra Section I.A.13 Although it appears that the initial version
of what would become Section 111(d) was primarily concerned with the Administrator’s
authority to maintain a sufficient number of screeners, see American Fed’n of Gov’t
Employees TSA Local 1 v. Hawley, 481 F. Supp. 2d at 77, Senator McCain’s amendment
significantly broadened the reach of the provision “[t]o authorize the employment,
suspension, and termination of airport passenger security screeners without regard to the
provisions of title 5, United States Code, otherwise applicable to such employees,” 147 Cong.
Rec. S10,520 (daily ed. Oct. 11, 2001). Thus, when the law passed in substantially the form
proposed by Senator McCain, it was understood that matters that otherwise would have been
governed by 49 U.S.C. §§ 114(n), 40122(g), and the provisions of Title 5 incorporated
therein – such as “whether [screeners] can join a union; participate in the Federal Employees
Health Benefit Plan and retirement options; and be covered by non-discrimination, health and
safety, and whistleblower laws” – were left to the Administrator’s discretion. 147 Cong.
Rec. H8313 (daily ed. Nov. 16, 2001) (statement of Rep. Schakowsky). Viewed in this
context, it becomes clear that adopting Conyers’s reading of Section 111(d) – that it is
concerned with nothing more than the size and availability of the screener workforce – would
preference issues. It is also notable that § 44935(f)(2) is not among the many provisions
regarding veterans’ preference that he claims that the Administrator violated in his case.
13
Although the plain text of this statute is unambiguous and therefore we need not
discuss the legislative history, see United States v. Magassouba, 544 F.3d 387, 404 (2d Cir.
2008), we exercise our discretion to discuss some aspects of the legislative history in order
to respond to particular arguments put forth by Conyers.
20
require us to rewrite this history and return the ATSA to its pre-amendment form, which
preserved the Title 5 rights Conyers seeks to enforce here. This we cannot do.
Finally, the similarity between Webster and the instant case confirms this result. The
ATSA, like the National Security Act addressed in Webster, was passed shortly after a
cataclysmic event that Congress believed required it to take action to change the way in
which the nation protected itself. Compare Webster v. Doe, 486 U.S. at 600 (noting that the
NSA was“[p]assed shortly after the close of the Second World War”), with H.R. Rep. No.
107-296, at 53 (finding that the events of September 11, 2001, required “a fundamental
change in the way [the United States] approaches the task of ensuring the safety and security
of the civil air transportation system”), reprinted in 2002 U.S.C.C.A.N. 589, 590. In both
instances, Congress created a new agency to confront these challenges – the CIA in Webster,
the TSA here – and gave its administrator a high level of responsibility. Compare Webster
v. Doe, 486 U.S. at 600 (noting that Director of the CIA has “the responsibility ‘for
protecting intelligence sources and methods from unauthorized disclosure’” (quoting 50
U.S.C. § 403(d)(3) (1982)), with 49 U.S.C. § 114(d) (making the Administrator of TSA
“responsible for security in all modes of transportation”). In addition, recognizing that the
new agency’s “efficacy, and the Nation’s security, depend in large measure on the reliability
and trustworthiness of the Agency’s employees,” Webster v. Doe, 486 U.S. at 601, Congress
also gave its administrator broad authority to control the agency’s workforce. Compare 50
U.S.C. § 403(c) (1982) (“Notwithstanding the provisions of section 7501 of title 5, or the
provisions of any other law, the Director of Central Intelligence may, in his discretion,
21
terminate the employment of any officer or employee of the [Central Intelligence] Agency
whenever the he shall deem such termination necessary or advisable in the interests of the
United States.”), with 49 U.S.C. § 44935 note (“Notwithstanding any other provision of law,
the [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 the screening functions [required
by the ATSA].”). As in Webster, each of these aspects of “‘the structure of the statutory
scheme, its objectives, its legislative history, and the nature of the administrative action
involved,’” counsels against a finding that APA review of Conyers’s APA claim is permitted.
Natural Res. Def. Council v. Johnson, 461 F.3d at 171 (quoting Block v. Cmty. Nutrition
Inst., 467 U.S. at 345).
We need not decide whether APA review is unavailable with respect to all of the
Administrator’s decisions regarding screener employment. We conclude here only that the
specific “agency action” complained of by Conyers, namely, the Administrator’s decision not
to utilize the FAA’s personnel management system in deciding whom to “employ” or
“appoint” as a security screener, “is committed to agency discretion by” ATSA Section
111(d) and, thus, is not reviewable under the APA, 5 U.S.C. § 701(a).
B. VEOA Claims
Conyers also sues to secure an order directing the Administrator to comply with the
veterans’ preference provisions incorporated in the FAA’s personnel management system,
22
49 U.S.C. § 40122(g)(2)(B), as well as the regulations promulgated pursuant to those
provisions. The asserted jurisdictional basis for this claim is the VEOA, 5 U.S.C. § 3330b.
As the Federal Circuit has noted, “the purpose of the VEOA is to provide preference eligible
veterans with a method for seeking redress where their veterans’ preference rights have been
violated in hiring decisions made by the federal government.” Kirkendall v. Dep’t of Army,
479 F.3d 830, 837 (Fed. Cir. 2007). “Where a veteran establishes a violation, the agency is
ordered to comply with the veterans’ preference statutes and award compensation for any lost
wages or benefits suffered by reason of the violation.” Id. (citing 5 U.S.C. § 3330c(a)).
To this end, 5 U.S.C. § 3330a provides, inter alia, that a “preference eligible” person
“who alleges that an agency has violated such individual’s rights under any statute or
regulation relating to veterans’ preference may file a complaint with the Secretary of Labor.”
Subsection 3330a(d), in turn, provides that “[i]f the Secretary of Labor is unable to resolve
a complaint under subsection (a) within 60 days after the date on which it is filed, the
complainant may elect to appeal the alleged violation to the Merit Systems Protection
Board.” After taking such an appeal, § 3330b – the provision here relied upon by Conyers
– allows a preference eligible person, “[i]n lieu of continuing the administrative redress
procedure provided under section 3330a(d) . . . [to] elect, in accordance with this section, to
terminate those administrative proceedings and file an action with the appropriate United
States district court not later than 60 days after the date of the election.” Such an election
“may not be made,” however, either “(1) before the 121st day after the date on which the
appeal is filed with the Merit Systems Protection Board under section 3330a(d); or (2) after
23
the Merit Systems Protection Board has issued a judicially reviewable decision on the merits
of the appeal.” 5 U.S.C. § 3330b(b). In addition, such an election must “be made, in writing,
in such form and manner as the Merit Systems Protection Board shall by regulation
prescribe.” 5 U.S.C. § 3330b(c).14
We note at the outset that Conyers does not appear to have satisfied the prerequisites
for bringing a claim under § 3330b. Even if we were to agree with Conyers and the district
court that the dismissal of the MSPB Action for lack of jurisdiction was not a “judicially
reviewable decision on the merits of the appeal” under 5 U.S.C. § 3330b(b)(2), Conyers does
not allege that he filed a document with the MSPB “elect[ing], in accordance with” the
requirements of § 3330b and the relevant MSPB regulations, to pursue relief in federal court
“[i]n lieu of continuing the administrative redress procedure provided under section
3330a(d).” 15
14
This regulation is found at 5 C.F.R. § 1208.24:
(a) Election to terminate. At any time beginning on the 121st day after
an appellant files a VEOA appeal with the Board, if a judicially
reviewable Board decision on the appeal has not been issued, the
appellant may elect to terminate the Board proceeding as provided
under 5 U.S.C. 3330b and file a civil action with an appropriate United
States district court. Such election must be in writing, signed, filed
with the Board office where the appeal is being processed, and served
on the parties. The election is effective immediately on the date of
receipt by the Board office where the appeal is being processed. The
election may be filed by electronic filing, provided the requirements of
§ 1201.14 of this chapter are satisfied.
15
The complaint alleges only that, “[a]s per 5 U.S.C. § 3330b(b)(2), a judicially
reviewable decision on the merits of Plaintiff’s allegations of veteran preference violations
has not been rendered as the United States Merit Systems Protection Board (MSPB) has ruled
that it lacked jurisdiction over the VEOA claims.” Complaint ¶ 3. Conyers does not address,
24
In any event, we agree with the district court that Conyers’s purported VEOA claims
fail for much the same reason his APA claims fail: the veterans’ preference provisions he
contends were violated are simply not binding on the Administrator in light of Section 111(d)
of the ATSA. See also American Fed’n of Gov’t Employees TSA Local 1 v. Hawley, 481
F. Supp. 2d at 89-90 (dismissing a similar claim); Springs v. Stone, 362 F. Supp. 2d at 697-
700 (same). The district court therefore did not err in dismissing Conyers’s request for relief
under the VEOA.16
C. Constitutional Claims
Finally, Conyers seeks a declaration that the Administrator “willfully violated [his]
rights by failing to” (1) “abide by applicable veteran preference requirements and
however, the statute’s requirement that a written election be filed with the MSPB.
16
The district court held that because Conyers could not demonstrate that his veterans’
preference rights were violated, it lacked jurisdiction under the VEOA, because (1) actions
under § 3330b can only arise where an earlier appeal was filed with the MSPB under
§ 3330a; (2) § 3330a, in turn, only applies to allegations by a preference eligible person that
“an agency has violated such individual’s rights under any statute or regulation relating to
veterans’ preference”; and (3) Conyers cannot identify any “statute or regulation relating to
veterans’ preference” that applies to him, because ATSA Section 111(d) renders all such
statutes and regulations inapplicable to his case. We generally agree with this line of
reasoning, but we conclude therefrom that the Administrator is entitled to judgment on the
pleadings as to Conyers’s VEOA claims, not that the district court lacked jurisdiction over
such claims, because Conyers’s allegations of veterans’ preference violations are not
“frivolous.” Cf. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 701 (2d Cir.
2000) (“Federal question jurisdiction exists whenever the complaint states a cause of action
under federal law that is neither ‘clearly . . . immaterial and made solely for the purpose of
obtaining jurisdiction’ nor ‘wholly insubstantial and frivolous.’ It is well settled that
plaintiff’s failure to state a federal claim upon which relief could be granted does not mean
that federal question jurisdiction is lacking.” (quoting Bell v. Hood, 327 U.S. 678, 682-83
(1946)) (internal citation omitted)).
25
procedures,” in violation of the Due Process Clause of the Fifth Amendment, and (2) “ensure
fair and equitable consideration for employment under uniform personnel practices, policies,
and procedures,” in violation of the equal protection guarantees of the Fifth and Fourteenth
Amendments. Complaint at 24-25.
The district court held that these claims are barred by the doctrine of sovereign
immunity. On appeal, the Administrator does not rely on sovereign immunity to support
dismissal, recognizing that, in Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005), we ruled that
claims for prospective equitable relief, such as the declaratory judgment sought by Conyers
here, are not so barred. Id. at 178-79 (citing, inter alia, Edelman v. Jordan, 415 U.S. 651(1974)); cf. Alden v. Maine, 527 U.S. 706, 757 (1999) (noting that sovereign immunity “does
not bar certain actions against state officers for injunctive or declaratory relief”); Appellee’s
Br. at 22.
In Dotson, however, we went on to hold that, with respect to federal employees
covered by the Civil Service Reform Act (“CSRA”), “Congress has clearly expressed its
intent to preclude federal civil service personnel . . . from attempting to supplement statutory
remedies . . . with separate suits at equity raising constitutional challenges to adverse
employment actions.” 398 F.3d at 183. We decline the Administrator’s request to decide
here that ATSA Section 111(d), which would appear to exempt screeners from CSRA
coverage, similarly divests the federal courts of jurisdiction over Conyers’s constitutional
claims. See American Fed’n of Gov’t Employees Local 1 v. Stone, 502 F.3d at 1029-30,
1035-39 (holding that TSA screener’s constitutional claim sounding in equity was not barred
26
by the CSRA and Section 111(d)); see generally Whitman v. Dep’t of Transp., 547 U.S. 512,
513-14 (2006) (noting that “question, then, is not whether 5 U.S.C. § 7121 [outlining CSRA
grievance procedures] confers jurisdiction, but whether § 7121 (or the CSRA as a whole)
removes the jurisdiction given to the federal courts” over plaintiff’s constitutional claims
otherwise provided by 28 U.S.C. § 1331). Rather, mindful that the question is one of
statutory rather than constitutional jurisdiction, we assume hypothetical jurisdiction over
these claims, and we proceed to address the alternative argument for dismissal offered below,
namely, that judgment on the pleadings is appropriate as to Conyers’s constitutional claims.
See Fed. R. Civ. P. 12(c); see also Ajlani v. Chertoff, 545 F.3d 229, 237-38 (2d Cir. 2008)
(discussing hypothetical jurisdiction).
We agree with the Administrator that Conyers’s constitutional claims fail as a matter
of law. First, Conyers’s due process claim appears to be premised upon an assertion that he
possesses a “property right” to the preferences afforded veterans under Section 101 of the
ATSA and 49 U.S.C. § 40122(g)(2)(B), of which he cannot be deprived without adequate
procedures. Complaint ¶¶ 50-52.17 We have held here, however, that the Administrator is
not obliged to provide veterans applying for security screener positions the preferences
afforded under those provisions, as would be necessary to give rise to a colorable property
interest. See supra Section II.A; see generally Town of Castle Rock v. Gonzales, 545 U.S.
748, 756 (2005) (noting that claimed benefit does not give rise to a constitutionally protected
17
Even when read liberally, Conyers’s complaint raises only a procedural, not
substantive, due process claim. Cf. Gikas v. Washington Sch. Dist., 328 F.3d 731, 736-37
(3d Cir. 2003) (holding that Pennsylvania’s veterans’ preference statute does not create a
property interest protected by substantive due process).
27
interest “if government officials may grant or deny it in their discretion”); Board of Regents
of State Colls. v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a benefit,
a person clearly must have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement
to it.”). Conyers thus fails to state a claim for deprivation of property without due process.
Second, Conyers’s equal protection claim is premised upon an allegation that the TSA
did not utilize “uniform personnel practices while evaluating, assessing, rating, selecting, and
appointing the initial fielding of the screener workforce,” including in its evaluation of
Conyers’s own application. Complaint ¶¶ 47-49. In support, Conyers has attached as an
exhibit to the complaint a December 11, 2002 report from the Office of the Inspector General
in the Department of Transportation, which found that, although the TSA had “done a good
job of hiring a high proportion of veterans,” it had not yet adopted a “formal policy”
regarding veterans’ preferences. Memorandum from Alexis M. Stefani, Principal Assistant
Inspector Gen. for Auditing & Evaluation, Dep’t of Transp., to Admiral James M. Loy,
Under Sec’y of Transp. for Sec. at 1, 4 (Dec. 11, 2002). The report explained that the TSA
had instead relied on “a series of e-mails, verbal instructions, and informal documents” to
implement the preference policy, leading to “misunderstandings” at some TSA job fairs. Id.
at 4.18
Conyers does not allege, however, that he, or anyone else, was discriminated against
on the basis of race, sex, national origin, or other protected classification. Conyers’s claim
18
We note that this memorandum is concerned with the TSA’s implementation of the
requirements of 49 U.S.C. § 44935(f)(2).
28
is thus substantively identical to the “class-of-one” equal protection claims recently and
explicitly disapproved by the Supreme Court, at least in the employment context, in Engquist
v. Oregon Department of Agriculture, 128 S. Ct. 2146 (2008), a case decided after briefing
on this appeal was complete. The “class-of-one” theory holds that “the Equal Protection
Clause forbids public employers from irrationally treating one employee differently from
others similarly situated, regardless of whether the different treatment is based on the
employee’s membership in a particular class.” Id. at 2150. Engquist rejects this theory,
holding that the “traditional view of the core concern of the Equal Protection Clause as a
shield against arbitrary classifications, combined with unique considerations applicable when
the government acts as employer as opposed to sovereign, lead us to conclude that the class-
of-one theory of equal protection does not apply in the public employment context.” Id. at
2151. Because Conyers, like Engquist, does not assert an employment-related equal
protection claim arising out of his membership in any particular group, but rather a claim
based upon a general allegation that an agency “treated a[] [prospective] employee differently
from others for a bad reason, or for no reason at all,” id. at 2156, his equal protection claim
cannot survive defendant’s motion to dismiss.
III. Conclusion
To summarize, we conclude:
(1) plaintiff’s claim that the TSA Administrator was required to utilize the FAA’s
personnel management system in deciding whom to “employ” or “appoint” as a security
29
screener is not reviewable under the APA, but rather, pursuant to Section 111(d) of the
ATSA, 49 U.S.C. § 44935 note, has been “committed to agency discretion by law,” 5 U.S.C.
§ 701(a)(2);
(2) defendant is entitled to judgment on the pleadings as to plaintiff’s VEOA and due
process claims because the veterans’ preference statutes from which plaintiff seeks to benefit
are not applicable in light of Section 111(d) of the ATSA; and
(3) defendant is entitled to judgment on the pleadings on plaintiff’s equal protection
claim because it does not arise out of his membership in any particular group and, thus, fails
under Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146.
Accordingly, the district court’s judgment of dismissal is A FFIRMED.
30