LYNCH, Chief Judge.
This is a case of first impression for this court as to airport security screeners and the relationship between the Aviation and Transportation Security Act (ATSA), Pub.L. No. 107-71, 115 Stat. 597 (2001) (codified in scattered sections of 49 U.S.C.), and the Rehabilitation Act, 29 U.S.C. § 791 et seq.
Maura Field, administratrix of the estate of her late husband Martin Field, appeals from the district court's dismissal of her suit alleging that the Transportation Security Administration (TSA) discriminated and retaliated against Martin Field ("Field") on the basis of a disability in violation of the Rehabilitation Act. TSA determined that Field, who developed a diabetic ulcer on the bottom of his foot in 2006, was unable to perform even his adjusted job requirements as a TSA security screener at Boston's Logan International Airport because he could not stand for long periods of time and experienced difficulty walking. After Field missed several months of work, TSA terminated Field's employment on November 27, 2006, two years after it had hired him.
Field
The facts, as alleged in the complaint, are as follows.
On November 28, 2004, Mr. Field began working for TSA as an airport security screener at Logan International Airport in Boston, Massachusetts. TSA security screeners are primarily responsible for screening people and property at TSA security checkpoints in federal airports. Screeners are expected to meet several conditions of employment, including the ability to walk up to two miles during a shift and stand for prolonged periods of time. Screeners are also required to handle, lift, and carry baggage weighing up to seventy pounds.
In April 2006, Field was approved for restricted duty "to limit the time that he had to stand while he was working" due to a diabetic ulcer. He "reported to work on most days, but on occasion called in sick because he was unable to walk due to the diabetic ulcer on his foot." In June 2006, Field's leg became infected and he took approximately six weeks of leave under the Family Medical Leave Act.
On July 27, 2006, Field faxed a doctor's note to TSA management official George Barris stating that Field was able to return to work "with [the] restriction of getting off of his foot to a sitting position as he feels a need during his shift." Field alleges that he also called and faxed Barris several times over the following week, but received no response.
On August 4, 2006, Field reported for work. He was given certain forms to be completed by his doctor. Field immediately went to his doctor's office, where his doctor completed and faxed the forms to TSA Manager Tom Brady. That afternoon, Brady allegedly informed Field that TSA management "considered Mr. Field to be too much of a liability to return to work at that time." Field did not return to work.
From August 4 to October 23, 2006, Field called in sick nearly every day "so that he would not be terminated for not showing up for work." In the meantime, Field applied for unemployment benefits. Field stopped calling in sick on October 24, 2006, the day that he began to receive unemployment benefits.
On October 18, 2006, Barris sent Field a memorandum stating:
(alterations in original complaint). Field responded to Barris that he had reported for work with restrictions in August and had been informed that he would not be allowed to return to work. On October 26, Brady sent Field a further request for medical information, stating: "Our records indicate that you continue to call the sick line and to date we have not received any documentation which would authorize you to return to full duty without any restrictions." Field did not respond to this request.
On November 27, 2006, TSA terminated Field's employment, citing excessive absence without leave and failure to follow instructions.
After exhausting administrative remedies, Field brought suit in March 2010, alleging both discrimination on the basis of his diabetes and retaliation as a result of engaging in protected EEO activity. The TSA moved to dismiss both claims on the basis that the Aviation and Transportation Act (ATSA) exempts the TSA from compliance with the Rehabilitation Act and so provides no private cause of action to Field for either theory.
We review de novo the grant of a motion to dismiss under Rule 12(b)(6), accepting "as true all well-pleaded facts and making all reasonable inferences in favor of the plaintiff." Massachusetts v. Sebelius, 638 F.3d 24, 29 (1st Cir.2011). This issue is one of pure law, reviewed de novo. See Dickow v. United States, 654 F.3d 144, 148 (1st Cir.2011).
Congress enacted the ATSA immediately after the terrorist attacks of September 11, 2001. Congress sought "to improve aviation security" by effecting "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 1, 49 (2001), 2002 U.S.C.C.A.N. 589, 0, 590 (Conf.Rep.). To that end, Congress 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. 49 U.S.C. § 114.
Congress vested the TSA Administrator
Congress "recognize[d] that, in order to ensure that Federal screeners are able to provide the best security possible, the Secretary must be given wide latitude to determine the terms of employment of screeners." H.R.Rep. No. 107-296, at 57, 2002 U.S.C.C.A.N. 589, 57.
This led Congress to enact a very specific provision, ATSA § 111(d), which provides:
ATSA § 111(d), 115 Stat. at 620 (emphasis added) (49 U.S.C. § 44935 (historical and revision notes)).
Congress regarded screeners as so fundamental to aviation security that it outlined detailed minimum qualifications for the job in a provision containing a second "notwithstanding" clause. Section 44935(e)(2)(A), entitled "Qualifications [for Security Screeners]," states: "the Under Secretary shall establish qualification standards for individuals to be hired by the United States as security screening personnel. Notwithstanding any provision of law, those standards shall require, at a minimum, an individual" to meet several specific qualifications. 49 U.S.C. § 44935(e)(2)(A) (emphasis added). For example, security screeners must receive "a satisfactory or better score on a Federal security screening personnel selection examination" and must "demonstrate daily a fitness for duty without any impairment due to illegal drugs, sleep deprivation, medication, or alcohol." Id. § 44935(e)(2)(A)(i), (e)(2)(A)(v).
Most pertinently, the enumerated qualifications include detailed physical requirements. Section 44935(e)(2)(A)(iii) provides that security screeners must "meet, at a minimum, the requirements set forth in [§ 44935](f)." Section 44935(f), in turn, contains a third "notwithstanding" clause which sets forth the following physical requirements:
Id. § 44935(f)(1) (emphasis added). This section lists several additional physical requirements, including the ability to distinguish between colors, hear alarm sounds, and respond in spoken voice. Id.
Section 44935(e)(2)(A), the "Qualifications" section, also requires that "at a minimum [a security screener must] meet such other qualifications as the Under Secretary may establish." Id. § 44935(e)(2)(A). Using this authority, TSA has established that all security screeners must be able to handle, lift, and carry baggage weighing
The ATSA also mandates an annual evaluation of each security screener to ensure continued qualification for the job. 49 U.S.C. § 44935(f)(5). The statute states that "[a]n individual employed as a security screener may not continue to be employed in that capacity unless the evaluation demonstrates that the individual . . . continues to meet all qualifications and standards required to perform a screening function, . . . [and] demonstrates the . . . skills necessary to . . . effectively perform [such] screening functions." Id. § 44935(f)(5).
Finally, the statute provides that the "Under Secretary shall also review, and revise as necessary, any standard, rule, or regulation governing the employment of individuals as security screening personnel." Id. § 44935(e)(3).
The question before us is whether the ATSA precludes a security screener, Field, from bringing suit under the federal Rehabilitation Act,
The TSA takes the position that the ATSA excludes security screeners from filing suit in federal court under certain of the federal employment statutes incorporated under Title 5 of the United States Code, including the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Rehabilitation Act. While consistently taking the position that suit cannot be brought under any of these Acts as to security screeners, the TSA Administrator has, within the TSA itself through Management Directives, provided certain corollary limited protections, which include some whistleblower protections
As to the Rehabilitation Act, the TSA Administrator has issued a Management Directive providing that employees may request a reasonable accommodation but that employees who fail to meet the statutory requirements for the security screener position are not eligible for such accommodations. See TSA Management Directive No. 1100.73-4 (Jan. 25, 2006) ("Reasonable Accommodation Program"). Pursuant to his statutory authority, the TSA Administrator has declined to fully extend the Rehabilitation Act standards to security screeners because, inter alia, the Rehabilitation Act standards are not consistent with the physical qualifications that the TSA Administrator has established for the screener position.
The plain language of the ATSA supports the TSA position. "It is well established that, when the statutory language is plain, we must enforce it according to its terms." Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). The ATSA provides that the TSA Administrator may establish and enforce employment qualifications for security screeners "[n]otwithstanding any other provision of law." 49 U.S.C. § 44935 (historical and revision notes).
"[T]he 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." Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993). As Cisneros observed, "[a] clearer statement is difficult to imagine." Id. (alteration in original) (quoting Liberty Mar. Corp. v. United States, 928 F.2d 413, 416 (D.C.Cir.1991)) (internal quotation marks omitted). The law of this circuit follows Cisneros. See United States v. Hyde, 497 F.3d 103, 108 (1st Cir.2007) (citing Cisneros for the holding that the language "[n]otwithstanding any other Federal law" in the Mandatory Victims Restitution Act is an "unambiguous" indication that the statute overrides conflicting provisions in the federal Bankruptcy Code).
Moreover, the ATSA enumerates specific physical qualifications for screeners, requires that screeners meet any such other physical qualifications as the TSA Administrator may establish, and requires the TSA to conduct annual evaluations to ensure conformity with such qualifications. 49 U.S.C. § 44935(e)-(f). Thus, under the ATSA, TSA cannot retain as security screeners individuals who are physically incapable of distinguishing between colors, hearing alarms, handling up to 70 pounds of baggage, or conducting a full-body pat-down. See id.
Allowing security screeners to bring suit under the Rehabilitation Act would be inconsistent with these statutory mandates in several respects. First, these specific ATSA requirements as to security screeners and the assignment of qualifications to the TSA Administrator displace the broader and more general standards of the Rehabilitation Act. Compare 49 U.S.C. § 44935(e)-(f), with 29 U.S.C. § 794. Second, these provisions preclude second-guessing
Every 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 5 of the United States Code, including the Rehabilitation Act. See, e.g., Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir.2011), reh'g en banc denied, 2011 U.S.App. LEXIS 5254 (7th Cir. Mar. 9, 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 290, ___ L.Ed.2d ___, 2011 WL 4535993 (U.S. Oct. 3, 2011) ("We now join every other circuit to have considered the question and conclude that the plain language of the ATSA preempts application of the Rehabilitation Act to security screeners."); Castro v. Sec'y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir.2006) ("The 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."); Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1383 (Fed.Cir. 2004) ("Section 111(d) of the ATSA exempts TSA from laws that otherwise would apply to screener positions."); see also Conyers v. Rossides, 558 F.3d 137, 148 (2d Cir.2009) (holding that "the [TSA] Administrator's decision not to utilize the [Federal Aviation Administration]'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 [Administrative Procedure Act]") (quoting 5 U.S.C. § 701(a)).
Despite the unequivocally plain language of the ATSA, plaintiff argues that Congress could not have intended to deny security screeners the ability to sue under the Rehabilitation Act. To the contrary, not only is the reason for the ATSA's preclusion of suit under the Rehabilitation Act self-evident, but the Congressional history makes clear the intent to do so.
The original version of the proposed ATSA made the provisions of Title 5 of the United States Code, including the Rehabilitation Act, applicable to all screeners hired.
Several members of Congress expressed their understanding that § 111(d) gave the TSA Administrator "the authority to determine whether [screeners] can join a union;
Plaintiff's fallback argument is that the ATSA exempts the TSA from suit under the Rehabilitation Act only insofar as the ATSA enumerates minimum physical and intellectual requirements in § 44935(f). Plaintiff proposes we adopt the view, expressed in several EEOC appellate decisions, that TSA's exemption from "the Rehabilitation Act must be determined on a case-by-case basis, in light of the specific allegations made, and will depend on whether there is any conflict between the ATSA-mandated qualifications and the complainant's Rehabilitation Act claim." Chapman v. Chertoff, EEOC Appeal No. 0120051049, 2008 WL 3820633, at *3, 2008 EEOPUB LEXIS 2746, at *7 (Aug. 6, 2008); see Kimble v. Napolitano, EEOC Appeal No. 0120072195, 2009 WL 4573665, at *1, 2009 EEOPUB LEXIS 3302, at *2 (Nov. 24, 2009); Getzlow v. Chertoff, EEOC Appeal No. 0120053286, 2007 WL 1964480, at *3, 2007 EEOPUB LEXIS 2508, at *8-9 (June 26, 2007).
We reject this argument. Congress gave the EEOC no role to play in interpreting the ATSA.
Nor does the EEOC have any particular expertise in airport security needs. See Metzger, Federalism and Federal Agency Reform, 111 Colum. L.Rev. 1, 26 (2011) (describing the Supreme Court's growing wariness of agency interpretations that are "not grounded in agency expertise and therefore [do] not merit deference"). Additionally, the EEOC interpretation is contrary to the statute in that it requires engaging in a case-by-case analysis of whether TSA's decisions are correct under the Rehabilitation Act. Congress did not intend such a result.
Plaintiff further argues that because TSA has voluntarily established through its Management Directive a limited version of reasonable accommodation, it has permanently waived its exemption from suit under the Rehabilitation Act. Again, not so. The TSA Management Directive establishing a limited reasonable accommodation program does so pursuant to Executive Order 13,164, which directs federal agencies to adopt reasonable accommodation procedures. See TSA Management Directive No. 1100.73-4 (Jan. 25, 2006) ("Reasonable Accommodation Program"). Significantly, by its terms, Executive Order 13,164 makes clear that the adoption of such procedures "does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, its employees, or any
In enacting the ATSA, Congress sought not only to give the Administrator "wide latitude to determine the terms of employment of screeners," but also the flexibility to change those terms as necessary to ensure aviation safety. H.R.Rep. No. 107-296, at 64, 2002 U.S.C.C.A.N. 589, 57. Thus, the statute provides that the "Under Secretary shall also review, and revise as necessary, any standard, rule, or regulation governing the employment of individuals as security screening personnel." 49 U.S.C. § 44935(e)(3). The ATSA's mandate to set and revise terms of employment means that the Administrator's Management Directives cannot constitute waiver of ATSA § 111(d).
The language of the ATSA makes clear that Field has no cause of action under the Rehabilitation Act. Should there be abuses in the treatment of screening personnel by the TSA (and we certainly do not suggest that there was any such abuse here), Congress will, no doubt, take note. The order of the district court is affirmed. Costs are awarded to TSA.
By contrast, Congress did direct the TSA to "work in conjunction with" the Federal Aviation Administration and International Civil Aviation Organization, and to "give great weight" to the views of the National Transportation Safety Board. See 49 U.S.C. § 114(f)(13)-(14), (i).
