Anna Galaza v. Alejandro Mayorkas ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA GALAZA, No. 21-15464
Plaintiff-Appellant, D.C. No. 2:16-cv-
00878-RFB-DJA
v.
ALEJANDRO MAYORKAS,* OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted September 9, 2022
Pasadena, California
Filed February 28, 2023
Before: Johnnie B. Rawlinson, Bridget S. Bade, and
Daniel A. Bress, Circuit Judges.
Per Curiam Opinion
*
Alejandro Mayorkas is substituted for his predecessor Chad F. Wolf,
former Acting Secretary of the Department of Homeland Security. See
Fed. R. App. P. 43(c)(2).
2 GALAZA V. MAYORKAS
SUMMARY **
Aviation and Transportation Security Act
The panel affirmed the district court’s order dismissing,
as preempted by the Aviation and Transportation Security
Act (“ATSA”), Anna Galaza’s claim against the
Transportation Security Administration (“TSA”) alleging
discrimination in violation of the Rehabilitation Act.
Galaza alleged that she suffered two injuries while
working for the TSA as a Transportation Security Officer,
also known as a screener. Galaza’s doctor cleared her to
return to a permanent limited-duty position. After
undergoing vocational rehabilitation, Galaza remained
unable to fulfill the duties of a TSA screener and was
terminated from employment with the TSA.
The ASTA establishes basic qualifications for the
position of ATSA security screener, and vests the
Administrator of the TSA with the authority to determine
additional employment standards and training for security
screeners. The Rehabilitation Act protects qualified
individuals with disabilities from being subjected to
discrimination under activity conducted by any Executive
agency because of his or her disability. 29 U.S.C. § 794(a).
The panel joined the First, Fifth, Seventh, and Eleventh
Circuits in holding that the ATSA, as applicable to security
screeners, preempts the Rehabilitation Act. The ATSA
authorized the Administrator of the TSA to set aside
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GALAZA V. MAYORKAS 3
employment standards for security screeners as necessary to
fulfill the TSA’s screening functions under the ATSA. A
statutory note to the ATSA provides that the Administrator
is authorized to do so notwithstanding any other provision of
law. The panel held that use of the phrase “notwithstanding
any other provision of law” reflected legislative intent to
preempt the provisions of the Rehabilitation Act.
Galaza contended that preemption was unnecessary
because the two statutes could be harmonized, and
preemption was foreclosed by explicit language in
the Whistleblower Protection Act (“WPEA”). The panel
declined to address the issue whether the WPEA made the
Rehabilitation Act generally applicable to security screeners
because this issue was not raised in the district court. In
addition, Galaza was terminated over two years before the
WPEA took effect, and the WPEA did not apply
retroactively.
COUNSEL
Jenny Foley (argued), HKM Employment Attorneys LLP,
Las Vegas, Nevada; Philip J. Trenchak and Victoria C.
Mullins, Mullins & Trenchak, Las Vegas, Nevada; for
Plaintiff-Appellant.
Holly Ann Vance (argued), Assistant United States
Attorney; Elizabeth O. White, Appellate Chief; Christopher
Chiou, Acting United States Attorney; Office of the United
States Attorney; Reno, Nevada; for Defendant-Appellee.
4 GALAZA V. MAYORKAS
OPINION
PER CURIAM:
The Aviation and Transportation Security Act (ATSA)
authorizes the Administrator of the Transportation Security
Administration (TSA) to set employment standards for
security screeners as necessary to fulfill the TSA’s screening
functions under the ATSA. See 49 U.S.C. § 44935(a), (f).
Because the Administrator is authorized to do so
“[n]otwithstanding any other provision of law[,]” we join the
First, Fifth, Seventh, and Eleventh Circuits in holding that
the ATSA preempts the Rehabilitation Act, 29 U.S.C.
§§ 791, 794, as applicable to security screeners. See Field v.
Napolitano, 663 F.3d 505, 512 (1st Cir. 2011); Kaswatuka v.
U.S. Dep’t of Homeland Sec., 7 F.4th 327, 330 (5th Cir.
2021); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir.
2011) (per curiam); Castro v. Sec’y of Homeland Sec., 472
F.3d 1334, 1337 (11th Cir. 2006) (per curiam). We have
jurisdiction to review Galaza’s appeal under 28 U.S.C.
§ 1291 and AFFIRM the district court’s dismissal of the
complaint.
I. Background
Galaza brought an action against the TSA, alleging
discrimination in violation of the Rehabilitation Act when
she was terminated from her limited-duty position.
According to the allegations in Galaza’s complaint, 1 she
suffered two injuries while working for the TSA, as a
1
Because Galaza’s claim was dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(6), we presume the truth of the allegations in her
complaint. See Produce Pay Inc. v. Izguerra Produce, Inc., 39 F.4th
1158, 1161 (9th Cir. 2022).
GALAZA V. MAYORKAS 5
Transportation Security Officer, also known as a screener.
Following her second injury, Galaza was absent from work
until her doctor cleared her to return to a permanent limited-
duty position. After undergoing vocational rehabilitation,
Galaza remained unable to fulfill the duties of a TSA
screener, and was terminated from employment with the
TSA. Galaza alleged that she was terminated due to her
disability, and despite the availability of limited duty
positions that she could fill such as “exit lane monitor,”
“secondary ticket checker,” or “bypass door monitor.”
Galaza filed a complaint with TSA’s Equal Employment
Opportunity Office and subsequently filed an action in
federal district court. The district court dismissed all of
Galaza’s claims, including her Rehabilitation Act claim.
The district court reasoned that the ATSA preempted
application of the Rehabilitation Act to TSA screeners.
We dismissed Galaza’s first appeal because she
voluntarily dismissed the claims in her amended complaint
without the district court’s involvement and therefore did not
effectuate a final appealable judgment. See Galaza v. Wolf,
954 F.3d 1267, 1272 (9th Cir. 2020). Galaza later obtained
a final appealable judgment from the district court pursuant
to an order dismissing her Rehabilitation Act claim,
acknowledging the voluntary dismissal of her remaining
claims, and granting her motion for a final order. Galaza
now appeals the dismissal of her Rehabilitation Act claim
for the second time.
II. Discussion
“We review de novo a district court’s dismissal under
Rule 12(b)(1) or Rule 12(b)(6). . . .” Sabra v. Maricopa
Cnty. Cmty. Coll. Dist., 44 F.4th 867, 878 (9th Cir. 2022)
(citation omitted). “When interpreting statutes, the court
6 GALAZA V. MAYORKAS
gives effect to the unambiguous words Congress actually
used. . . .” GCIU-Emp’r Ret. Fund v. MNG Enters., Inc., 51
F.4th 1092, 1097 (9th Cir. 2022) (citation and alteration
omitted). “[W]e are not at liberty to override congressional
intent and read a statutory term contrary to its plain
meaning.” Animal Legal Def. Fund v. U.S. Dep’t of Agric.,
933 F.3d 1088, 1095 (9th Cir. 2019).
Following the September 11, 2001 terrorist attacks,
Congress enacted the ATSA, which “created a new agency,
the TSA, with sweeping responsibility for airport security
screening, including setting the qualifications, conditions,
and standards of employment for airport security screeners.”
Field, 663 F.3d at 508 (citation omitted). Congress
specifically “vested the TSA Administrator with the
authority to carry out the provisions of the ATSA,” including
“wide latitude to determine the terms of employment of
screeners.” Id. (citation and footnote reference omitted).
The ATSA establishes basic qualifications for the position
of ATSA security screener, including physical requirements,
and states that “[n]otwithstanding any other provision of
law, an individual may not be deployed as a security screener
unless that individual meets” those requirements. 49 U.S.C.
§ 44935(f) (emphasis added). The ATSA also vests the
Administrator of the TSA with the authority to determine
additional employment standards and training for security
screeners. See id. at § 44935(e)(2). The Act states that
“[n]otwithstanding any other provision of law, those
standards shall require, at a minimum, an individual . . . to
meet such other qualifications as the Administrator may
establish.” Id. at § 44935(e)(2)(A) (emphasis added).
Finally, a statutory note to the ATSA provides that,
GALAZA V. MAYORKAS 7
[N]otwithstanding any other provision of
law, the [Administrator of the Transportation
Security Administration] 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].
Aviation and Transportation Safety Act, PL 107-71,
November 19, 2001, 115 Stat 597, note to 49 U.S.C. § 44935(emphasis added) (second alteration in the original).
The Rehabilitation Act protects qualified individuals
with disabilities from “be[ing] excluded from the
participation in, . . . denied the benefits of, or . . . subjected
to discrimination . . . under any program or activity
conducted by any Executive agency . . .” solely “by reason
of his or her disability.” 29 U.S.C. § 794(a); see also 29
U.S.C. § 791.
The Federal Circuit was the first circuit court to reason
that “[t]he language ‘notwithstanding any other provision of
law’ [in the ATSA] signals that” the Administrator’s
discretion to set employment standards “override[s] more
general conflicting statutory provisions to the extent that
they would apply to screeners.” Conyers v. Merit Sys. Prot.
Bd., 388 F.3d 1380, 1382 (Fed. Cir. 2004). Two years later,
the Eleventh Circuit specifically held that the ATSA
preempts application of the Rehabilitation Act to security
screeners. See Castro, 472 F.3d at 1337.
The Eleventh Circuit affirmed the dismissal of Castro’s
action alleging that the TSA violated the Rehabilitation Act
8 GALAZA V. MAYORKAS
when rejecting Castro’s application for employment based
on his history of “physiologic non-epileptic seizures.” Id. at
1335. Relying on the “notwithstanding any other provisions
of law” language in the statutory note to the ATSA, the court
reasoned that “[t]he plain language of the ATSA indicates
that TSA need not take the requirements of the
Rehabilitation Act into account when formulating hiring
standards for screeners.” Id. at 1337.
In Joren, the Seventh Circuit also relied on the language
from the statutory note to “conclude that the plain language
of the ATSA preempts application of the Rehabilitation Act
to security screeners.” 633 F.3d at 1146 (citations omitted).
The Seventh Circuit noted that the “Supreme Court has
recognized in other contexts that the use of a
‘notwithstanding’ clause signals Congressional intent to
supercede conflicting provisions of any other statute.” Id.(citation omitted).
The First Circuit reached the same conclusion in Field.
See 663 F.3d at 511. In addition to discussing the plain
language of the ATSA and the Supreme Court’s treatment of
“notwithstanding” clauses, the court explained that the
congressional history of the ATSA evinces Congress’s intent
to preclude suits against the TSA under the Rehabilitation
Act. See id. at 512 (noting that Congress considered making
“the provisions of Title 5 of the United States Code,
including the Rehabilitation Act, applicable to all screeners
hired” under the ATSA, but ultimately rejected that version
of the legislation) (citation and footnote reference omitted).
The First Circuit emphasized that “[e]very circuit to address
the issue has agreed that the language of the ATSA plainly
precludes security screeners from bringing suit under certain
of the federal employment statutes incorporated under Title
GALAZA V. MAYORKAS 9
5 of the United States Code, including the Rehabilitation
Act.” Id. (citations omitted).
The Fifth Circuit is the most recent circuit to hold that
the ATSA preempts the Rehabilitation Act, and it also relied
on the “notwithstanding” clauses in concluding that
“sections of the ATSA conflict with the Rehabilitation Act,”
thereby triggering the “override” function of the
“notwithstanding” clauses. Kaswatuka, 7 F.4th at 330.
The ATSA’s use of “notwithstanding any other
provision of law” with regard to the Administrator’s
authority to set employment standards for security screeners
was dispositive in each Circuit’s analysis. We are persuaded
by this unanimous reasoning from our sister Circuits that use
of the phrase “notwithstanding any other provision of law”
reflects legislative intent to preempt the provisions of the
Rehabilitation Act. See Cisneros v. Alpine Ridge Grp., 508
U.S. 10, 18 (1993) (“[I]n construing statutes, the use of such
a ‘notwithstanding’ clause clearly signals the drafter’s
intention that the provisions of the ‘notwithstanding’ section
override conflicting provisions of any other section.”)
(citation omitted). Accordingly, the decision to terminate
Galaza was not a violation of the Rehabilitation Act. See
Kaswatuka, 7 F.4th at 330.
Despite the consensus of the circuit courts that have
addressed this issue, Galaza continues to maintain that
preemption of the Rehabilitation Act is contrary to
congressional intent. Galaza also contends that preemption
is unnecessary because the two statutes can be harmonized,
and that preemption is foreclosed by explicit language in the
Whistleblower Protection Act (WPEA) including TSA
screeners within the protection of the Rehabilitation Act.
10 GALAZA V. MAYORKAS
Galaza’s contention that preemption of the
Rehabilitation Act is inconsistent with congressional intent
lacks merit in light of the plain language of the
“notwithstanding” clauses in the statute. See Animal Legal
Def. Fund, 933 F.3d at 1095 (“[W]e are not at liberty to
override congressional intent and read a statutory term
contrary to its plain meaning.”); see also Field, 663 F.3d at
512 (describing the language of the ATSA as “plain[]”). The
two statutes cannot be harmonized because the general
provisions of the Rehabilitation Act conflict with the plain
language of the “notwithstanding” clauses overriding those
provisions “to the extent that they would apply to screeners.”
Conyers, 388 F.3d at 1382.
We decline to address the issue of whether the WPEA
made the Rehabilitation Act generally applicable to security
screeners because this issue was not raised in the district
court. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018)
(“The usual rule is that arguments raised for the first time on
appeal . . . are deemed forfeited. . . .”) (citation omitted). In
addition, Galaza was terminated “on or about May 5, 2010,”
over two years before the WPEA took effect, and the WPEA
does not apply retroactively. See Whistleblower Protection
Enhancement Act of 2012, PL 112-199, November 27, 2012,
126 Stat 1465, 1475; see also Hicks v. Merit Sys. Prot. Bd.,
819 F.3d 1318, 1321 (Fed. Cir. 2016) (“Congress
specifically provided . . . that the WPEA would become
effective on December 27, 2012 . . .”) (citations omitted);
Talaie v. Wells Fargo Bank, NA, 808 F.3d 410, 411-12 (9th
Cir. 2015) (“The Supreme Court has held that the
presumption against retroactive legislation is deeply rooted
in our jurisprudence, and can only be overcome where
Congress expresses a clear and unambiguous intent to do so.
. . .”) (citation and internal quotation marks omitted).
GALAZA V. MAYORKAS 11
III. Conclusion
We AFFIRM the district court’s dismissal of Galaza’s
Rehabilitation Act claim as preempted by the ATSA.