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
