ALAN C. KAY, District Judge.
For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendant Kirstjen M. Nielsen's Motion to Dismiss for Lack of Subject-Matter Jurisdiction, ECF No. 15. Plaintiff's Rehabilitation Act claims are DISMISSED WITH PREJUDICE; the Court declines to dismiss Plaintiff's Title VII claims; and Defendant Transportation Security Administration is DISMISSED WITH PREJUDICE.
On January 19, 2018, Michael Botelho ("Plaintiff") filed a Complaint against the Transportation Security Administration (the "TSA") and Elaine C. Duke in her official capacity as Acting Secretary of the United States Department of Homeland Security ("DHS"). ECF No. 1. Plaintiff asserts claims against the Defendants pursuant to (1) the Rehabilitation Act of 1973 and (2) Title VII of the Civil Rights Act of 1964. Compl. at ¶¶ 37-38. Specifically, Plaintiff appears to allege that he was discriminated against on the basis of his disability (diabetes), subjected to a hostile work environment, and retaliated against for engaging in a protected activity. Prior to filing his Complaint in this Court, Plaintiff exhausted his administrative remedies when he filed an Employment Opportunity ("EEO") complaint alleging that he was discriminated against on the basis of his age, disability, and engaging in a protected activity,
On June 1, 2018, Defendant Kirstjen M. Nielsen ("Defendant Nielsen"), Secretary of the United States DHS, filed a Motion for Dismissal or, in the Alternative, for Summary Judgment.
On August 15, 2018, the Court approved a Stipulation that the parties filed in which they agreed to continue various deadlines and also stipulated that Defendant Nielsen would withdraw without prejudice the summary judgment portion of her Motion. ECF No. 18. Pursuant to the Stipulation, the Court continued the Hearing set for September 10, 2018 to December 17, 2018. On November 13, 2018, the Court approved another Stipulation withdrawing without prejudice the summary judgment portions of Defendant Nielsen's Motion (Sections IB and III).
On November 26, 2018, Plaintiff filed his Memorandum in Opposition to Defendant Nielsen's Motion. ECF No. 25. On December 3, 2018, Defendant Nielsen filed her Reply. ECF No. 27. A Hearing on Defendant Nielsen's Motion to Dismiss was held on December 17, 2018.
The facts in this Order are recited only for the purposes of deciding Defendant Nielsen's Motion to Dismiss and are not intended to be findings of fact upon which the parties may rely in future proceedings.
According to the Complaint, Plaintiff is a disabled 55-year-old male who resides in Honolulu, Hawai`i. Compl. ¶ 4. Plaintiff was appointed to a position as a Transportation Security Screener with the TSA at the Daniel K. Inouye Honolulu International Airport ("HNL") in November 2002.
9. Around the same time, some sort of inquiry was conducted regarding Plaintiff's conduct at work.
The TSA issued Plaintiff a Notice of Proposed Removal on January 26, 2007 because he was absent from work for two-and-one-half years.
In March 2009, Plaintiff applied for intermittent leave under the Family and Medical Leave Act ("FMLA") on the basis of his diabetes diagnosis, which was granted.
Plaintiff then filed the EEO complaint that forms the basis of this action.
A court's subject-matter jurisdiction may be challenged under Federal Rule of Civil Procedure 12(b)(1). Such challenges may be either "facial" or "factual."
In a facial attack, "the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction."
By contrast, in a factual attack, "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction."
Defendant Nielsen argues that this Court lacks subject-matter jurisdiction over Plaintiff's claims because section 111(d) of the Aviation and Transportation Security Act (the "ATSA") preempts Rehabilitation Act claims brought by security screeners against the TSA. Mem. at 1. The parties agree that this is a facial attack on this Court's subject-matter jurisdiction. Mem. at 3; Opp. at 2. The Court finds that this is, indeed, a facial attack because the parties do not appear to dispute at this time the factual allegations underlying Plaintiff's Complaint. Accordingly, the Court proceeds with its analysis by first addressing Plaintiff's Rehabilitation Act claims and second addressing Plaintiff's Title VII claims.
For the reasons set forth below, the Court finds that the ATSA precludes security screeners from bringing Rehabilitation Act claims against the TSA; therefore, the Court dismisses Plaintiff's Rehabilitation Act claims for lack of subject-matter jurisdiction. The Court declines to dismiss Plaintiff's Title VII claims because it appears that the ATSA does not preempt Title VII as a general matter, and because the parties did not brief the issue.
In general, the Rehabilitation Act protects federal employees from discrimination on the basis of disabilities. 29 U.S.C. §§ 791, 794. Defendant Nielsen argues that the ATSA excludes TSA security screeners from the protections afforded to federal employees under the Rehabilitation Act, citing longstanding precedent in support of her proposition, and therefore the Court may not exercise subject-matter jurisdiction over Plaintiff's claims. Mem. at 4-5. Plaintiff concedes that the ATSA preempts certain Rehabilitation Act claims brought by security screeners, but argues principally that (1) the cases which hold that the ATSA preempts Rehabilitation Act claims are bad law; (2) the preemption determination must be made on a case-by-case basis; and (3) to find that the ATSA preempts Rehabilitation Act claims leaves security screeners without legal recourse. Opp. at 2, 7, 9. The parties do not appear to dispute the fact that Plaintiff, who was a Behavior Detection Officer at the time of the alleged discrimination and retaliation, was a security screener for purposes of determining whether his claims are preempted.
The Court begins by first providing some background on the ATSA and the statutory provisions that are relevant to the instant proceedings, as well as the case law which discusses ATSA preemption of the Rehabilitation Act. The Court then addresses Plaintiff's arguments.
The ATSA was enacted in the wake of the September 11, 2001 terrorist attacks in order to ensure the safety and security of the civil air transportation system in the United States. H.R. Rep. 107-296, pt. 2 at 53 (2001).
The sections of the ATSA that are relevant to the Court's current inquiry principally accomplished three things. First, 49 U.S.C. § 44935(a) granted the TSA Administrator broad powers to develop uniform training standards and uniform minimum qualifications for security screeners. Second, 49 U.S.C. § 44935(e)-(f) mandated that the TSA Administrator establish a program for the hiring and training of security screeners, and also establish employment qualification standards within thirty days of enactment of the ATSA, 49 U.S.C. § 44935(e); the ATSA also set forth specific minimum standards for security screeners relating to physical ability, stating that "[n]otwithstanding any provision of law, an individual may not be deployed as a security screener unless that individual meets" certain physical requirements related to aural and visual perception, as well as physical strength and dexterity. 49 U.S.C. § 44935(f). Third, section 111(d) of the ATSA, codified as a note to 49 U.S.C. § 44935, granted the TSA Administrator broad authority over security screener personnel matters. Specifically, section 111(d) states:
ATSA § 111(d) (49 U.S.C. § 44935 (historical and revision notes)).
These sections of the ATSA illustrate two points. First, the ATSA necessarily conflicts with the rights of the disabled under the Rehabilitation Act to at least some degree due to the ATSA's mandated physical qualification requirements. Second, Congress granted the TSA Administrator extremely broad authority over security screener qualifications and training, as well as security screener employment matters generally.
Accordingly, the Court must determine whether the "notwithstanding" clauses in the ATSA preempt claims brought by security screeners under the Rehabilitation Act.
The case law is abundantly clear that such claims are preempted in every instance. "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."
The Second and Federal Circuits have held that the "notwithstanding" language of the ATSA preempts claims by security screeners against the TSA which are brought pursuant to other federal laws, too.
Every district court in the country which has faced this question, including several within the Ninth Circuit, has invariably agreed that the ATSA preempts Rehabilitation Act claims brought by TSA security screeners.
Notwithstanding the uniform agreement of every court that has considered this question, Plaintiff argues that the other courts have engaged in "misapplied, illogical reasoning" and urges this Court to exercise subject-matter jurisdiction over Plaintiff's claims. Opp. at 9-10. The Court declines to do so for the reasons that follow.
In exercises of statutory construction, the Supreme Court has held that "when the statutory language is plain, we must enforce it according to its terms."
The Court finds that the plain meaning of the phrase "[n]otwithstanding any other provision of the law" clearly conflicts with claims brought by security screeners pursuant to the Rehabilitation Act in two ways. First, the disability protections afforded to federal employees under the Rehabilitation Act clearly conflict with the physical screener requirements specified in the ATSA.
The First Circuit's reasoning in
663 F.3d at 511-12.
For the foregoing reasons, the Court agrees with every other court that has considered the question and finds that the ATSA preempts Plaintiff's Rehabilitation Act claims. Accordingly, the Court finds that the ATSA precludes TSA screeners from filing suit against the TSA pursuant to the Rehabilitation Act, and therefore the Court may not exercise subject-matter jurisdiction over Plaintiff's Rehabilitation Act claims.
Plaintiff argues in the alternative that courts must undertake a case-by-case analysis in order to determine whether the ATSA preempts a Rehabilitation Act claim. Plaintiff provides no authorities in support of his argument, and the Court agrees with the First Circuit in finding that the argument lacks merit.
In
Plaintiff argues that Rehabilitation Act claims are preempted only where the disability at issue conflicts with a specific qualification requirement enumerated in 49 U.S.C. § 44935(f). Opp. at 5-6. The Court finds that this argument is without merit because of section 111(d) of the ATSA, which, as the Court has discussed, grants the TSA Administrator broad discretion over the employment terms of security screeners, including termination.
Accordingly, the Court rejects plaintiff's contention that ATSA preemption of Rehabilitation Act claims requires a case-by-case analysis.
As a last resort, Plaintiff argues that construing the ATSA in a way that preempts claims raised under the Rehabilitation Act leads to absurd results because security screeners are left with no legal recourse through which to address disability discrimination and harassment. Opp. at 7-9.
The Court rejects Plaintiff's argument because the statement that security screeners have no legal recourse through which to pursue disability discrimination claims is patently false. Specifically, on August 14, 2017, the TSA issued Management Directive No. 1100.73-3 titled "Anti-Harassment Program." This directive prohibits harassment and discrimination on the basis of a large number of factors including disability and participation in protected activities. TSA Management Directive No. 1100.73-3, at 4, (August 14, 2017) ("Anti-Harassment Program"). The directive also provides that, when faced with harassment or discrimination, TSA employees may file a complaint of discrimination with the Office of Civil Rights & Liberties, Ombudsman, and Traveler Engagement. TSA Management Directive No. 1100.73-3, at 2.
Furthermore, on August 22, 2018, the TSA issued Management Directive No. 1100.73-4 titled "Reasonable Accommodation Program." The purpose of this directive is to affirm "TSA policy and procedures for processing requests for reasonable accommodation made . . . pursuant to the Rehabilitation Act . . . ." TSA Management Directive No. 1100.73-4, at 1 (August 22, 2018). Clearly, the TSA has specific procedures in place to deal with the exact sort of disability discrimination that Plaintiff complains of.
Accordingly, the Court rejects Plaintiff's argument that preemption of Rehabilitation Act claims by security screeners leads to absurd results and leaves security screeners without legal recourse.
The Court now addresses a final issue which Plaintiff raised at the Hearing held on December 17, 2018. Plaintiff asserted that this Court has subject-matter jurisdiction over Plaintiff's Rehabilitation Act claims, and that the arguments raised in the parties' papers are properly raised in the context of a Rule 12(b)(6) motion to dismiss for failure to state a claim. The Court rejects Plaintiff's argument and finds that a Rule 12(b)(1) motion is a proper vehicle through which to dispose of Plaintiff's Rehabilitation Act claims, notwithstanding the fact that many courts have dismissed such claims pursuant to Rule 12(b)(6).
Federal courts are courts of limited jurisdiction.
Here, by enacting section 111(d) of the ATSA, Congress exercised its power to restrict the jurisdiction of the federal courts by divesting them of jurisdiction over certain claims against the TSA—including Rehabilitation Act claims by TSA security screeners. For this reason, the Court lacks subject-matter jurisdiction over Plaintiff's Rehabilitation Act claims.
Accordingly, the Court dismisses Plaintiff's Rehabilitation Act claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
The Court notes that neither party has addressed whether the ATSA preempts claims brought by security screeners pursuant to Title VII.
Because it does not appear that the ATSA preempts Title VII claims by TSA security screeners, and the parties have not properly briefed this issue, the Court declines to dismiss Plaintiff's Title VII claims at this time.
Defendant Nielsen requests that the Court dismiss Defendant TSA because in a discrimination action against the federal government, the only proper defendant is the head of the affected agency in his or her official capacity. Mem. at 1, n. 1. Nowhere in his Opposition does Plaintiff oppose Defendant Nielsen's request for the Court to dismiss Defendant TSA.
Under Title VII, the appropriate defendant in a discrimination action is "the head of the department, agency, or unit." 46 U.S.C. § 2000e-16(c);
For the foregoing reasons, the Court GRANTS Defendant Nielsen's Motion with respect to Plaintiff's Rehabilitation Act claims. Because the Court lacks subject-matter jurisdiction over the Rehabilitation Act claims, those claims are DISMISSED WITH PREJUDICE. Defendant Nielsen's Motion is DENIED with respect to Plaintiff's Title VII claims. Finally, Defendant TSA is DISMISSED WITH PREJUDICE because it is not a proper defendant in a discrimination action against the federal government.
IT IS SO ORDERED.