16-1680-cv
Connors v. United States of America et al.




                                      In the
          United States Court of Appeals
                                      for the
                           Second Circuit
                                August Term, 2016

                           Submitted January 10, 2017
                             Decided July 13, 2017

                               Docket No. 16-1680-cv


                               MELANIE CONNORS,

                                                       Plaintiff-Appellant,

                                          v.

                     THE UNITED STATES OF AMERICA
                                   and
                  JOHN F. KELLY, Secretary, United States
                                *

                    Department of Homeland Security,

                                                       Defendants-Appellees.


Before:

       HALL, DRONEY, Circuit Judges, OETKEN, District Judge.†




*Pursuant to Fed. R. App. P. 43(c)(2), John F. Kelly is automatically substituted for
Jeh Charles Johnson in his official capacity as the Secretary of the United States
Department of Homeland Security. The Clerk is respectfully directed to amend the
caption of this matter accordingly.
†Judge J. Paul Oetken, United States District Court for the Southern District of New
York, sitting by designation.




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Connors v. United States of America et al.



   Appeal from a judgment of the United States District Court for the
Eastern District of New York (Vitaliano, J.) dismissing for lack of
subject matter jurisdiction a complaint seeking judicial review under
the Administrative Procedure Act, 5 U.S.C. § 702, of the employment
termination of a screening officer employed by the Transportation
Security Administration (“TSA”).

   We hold that the Aviation and Transportation Security Act, 49
U.S.C. § 44935 note, commits the termination of the employment of
TSA screeners to the unreviewable discretion of the TSA
Administrator and that the district court lacks subject matter
jurisdiction to review termination decisions pursuant to the
Administrative Procedure Act, 5 U.S.C. § 701(a).

       AFFIRMED.

                               William A. Roché, The Law Offices of
                               William A. Roché, P.C., Hicksville, New
                               York, for Plaintiff-Appellant.

                               Varuni Nelson, Rachel G. Balaban, and Dara
                               A. Olds, Assistant United States Attorneys,
                               of counsel, for Bridget M. Rohde, Acting
                               United States Attorney for the Eastern
                               District of New York, Brooklyn, New York,
                               for Defendants-Appellees.

PER CURIAM:

   In Conyers v. Rossides, 558 F.3d 137, 148 (2d Cir. 2009), cert.
denied, 133 S. Ct. 329 (2012), we held that Section 111(d) of the
Aviation Transportation Security Act, 49 U.S.C. § 44935 note
(“ATSA”), precluded judicial review under the Administrative
Procedure Act, 5 U.S.C. § 701(a) (“APA”), of a decision by the
Transportation Security Administration (“TSA”) not to utilize the
Federal Aviation Administration’s personnel management system in
deciding whom to employ or appoint as a screening officer. We did not
hold as a general matter that APA review was unavailable for all




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personnel decisions regarding TSA screening officers. See Conyers, 558
F.3d at 148.

    The case now before us gives us occasion to extend the holding of
Conyers to TSA decisions regarding the termination of screening
officers. For the reasons that follow, we hold that the ATSA precludes
review under the APA of a TSA decision to terminate a screening
officer. We therefore affirm the district court’s dismissal of this matter
for lack of subject matter jurisdiction.

   I. Background

   The following facts are taken from the complaint and its
attachments, which, on a motion to dismiss, both the district court and
this Court are obliged to view in the light most favorable to the
Plaintiff. See id. at 143.

   Plaintiff-Appellant Melanie Connors was employed by the TSA as
security screening officer, with the title of Expert Behavior Detection
Officer, at Newark Liberty International Airport. She was also the
recording secretary of the Association of Transportation Security
Management and Professionals (“ATSMAP”), a TSA employee
association.

   In February 2013, several TSA managers received packages
containing lists of names, addresses, telephone numbers, and email
addresses of 185 TSA employees, including several federal air
marshals. The list appeared to have been compiled from ATSMAP’s
membership roster. The TSA considers the identities of federal air
marshals to be sensitive security information (“SSI”), and an FBI
investigation ensued.

   During the course of the investigation, Connors told investigators
that it was possible that her personal computer, which contained the
ATSMAP membership roster, might have been hacked, or that her
husband might have accessed and released the information. The
investigation ultimately determined that neither Connors nor any
computer in her home was the source of the released information.
Nevertheless, in mid-September 2013, Connors received a Notice of




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Proposed Removal charging her with “lack of candor” in the
investigation and “failure to safeguard SSI.” Two months later, the
Deputy Federal Security Director at Newark Liberty International
Airport rendered a decision upholding the proposed penalty of removal
from federal service, and Connors was fired. She filed an
administrative appeal to the Department of Homeland Security Office
of Professional Responsibility Appellate Board (“OPR”). The OPR
overruled the Deputy Federal Security Director’s decision with respect
to the charge of lack of candor in the investigation, but sustained the
decision with respect to the charge of failure to safeguard SSI, and
upheld Connors’s termination.

   Connors then filed the present action in the United States District
Court for the Eastern District of New York, seeking judicial review of
her termination under the APA. The Defendants moved to dismiss for
lack of subject matter jurisdiction. The district court (Vitaliano, J.)
granted the motion. This timely appeal followed.

   II. Standard of Review

   In reviewing a dismissal for lack of subject matter jurisdiction, we
examine de novo the district court’s legal conclusions. Conyers, 558
F.3d at 143.

   III. Analysis

   APA review of an administrative action is presumptively available,
but that presumption yields to statutory provisions explicitly
precluding judicial review of administrative action or committing
administrative action to agency discretion. Id. at 143. When it is
argued that such a statutory provision precludes APA review, we
examine that provision with great care, reading it to provide an
exception to APA review only when we are satisfied that it constitutes
clear and convincing evidence of congressional intent to do so. Id.

   The relevant portion of the ATSA provides:

       [N]otwithstanding any other provision of law, the Under Secretary of
       Transportation for Security may employ, appoint, discipline,
       terminate, and fix the compensation, terms, and conditions of




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       employment of Federal service for such a number of individuals as the
       Under Secretary determines to be necessary to carry out the screening
       functions of the Under Secretary under section 44901 of title 49,
       United States Code. The Under Secretary shall establish levels of
       compensation and other benefits for individuals so employed.

49 U.S.C. § 44935 note.

   In Conyers, 558 F.3d at 144–48, we held that this provision
precluded APA review of a claim by an individual who applied for a
TSA security screening job and was rejected. There, we considered
carefully the text, structure, and legislative history of the ATSA, and
we need not repeat ourselves here. See id. at 145–47. We concluded
that the statute committed hiring decisions regarding TSA screeners to
the agency’s discretion, and thus removed review of such decisions
from the scope of the APA. See id. at 146–48.

   We limited our holding, however, to the particular employment
decision then at issue, and we specifically declined to hold that APA
review was unavailable for all personnel decisions involving TSA
screeners:

       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).

Id. The matter now before us concerns a firing decision rather than a
hiring decision and is thus not strictly controlled by Conyers.

    The ATSA, by its clear terms, grants the TSA extremely broad
authority over personnel matters. See id. at 145 (“Section 111(d)
speaks broadly of the administrator’s authority . . . .”). In particular,
the TSA is empowered to “terminate” “individuals” who “carry out the
screening functions” of the TSA “notwithstanding any other provision
of law.” 49 U.S.C. §44935 note. Accordingly, we now hold that the




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TSA’s decision to terminate Connors’s employment is not subject to
APA review. This holding follows naturally and ineluctably from the
reasoning we set forth in Conyers.

   The Plaintiff attempts to distinguish Conyers by characterizing the
hiring decision in Conyers, as contrasted with the firing decision here,
as a decision with public policy implications. This is not a meaningful
distinction. First, it assumes, incorrectly, that there are no policy
implications involved in the termination of a public employee’s job.
Second, Connors has pointed to nothing in the text, structure, or
history of the ATSA suggesting that it should be read to grant the TSA
discretion concerning only decisions with policy implications. To the
contrary, the ATSA’s grant of TSA discretion over screening personnel
employment matters is sweeping in its breadth. See id. at 146 (noting
that the ATSA implicates a “nearly comprehensive list of employment-
related decisions”).

    In Conyers, we noted a developing consensus in favor of ATSA
preclusion of judicial action among courts that have considered the
question in various contexts. See id. at 144–45 (collecting cases). This
consensus has strengthened since we decided Conyers. See, e.g., Field
v. Napolitano, 663 F.3d 505 (1st Cir. 2011) (holding that the ATSA
precluded a TSA security screener from bringing suit under the
Rehabilitation Act, 29 U.S.C. § 791 et seq.); Joren v. Napolitano, 633
F.3d 1144 (7th Cir. 2011) (per curiam) (same).

   Consistent with this consensus, we conclude that the district court
correctly determined that it lacked subject matter jurisdiction over this
matter, and properly dismissed it. Its judgment is affirmed.




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