MEMORANDUM OPINION
Plаintiffs American Federation of Government Employees TSA Local 1 (“AFGE”), Eugene Leimer, Don Card, Beatrice Campbell, Thomas Moriarty, and Jonathan Thorton bring this action against Edmund Hawley
1
in his capacity as Administrator
2
of the Transportation Securi
Following this Court’s denial of Plaintiffs’ Motion for a Preliminary Injunction and deferral of Plaintiffs’ Motion for Class Action Certification, Defendant filed a[10] Motion to Dismiss, followed by Plaintiffs’ Opposition and Defendant’s Reply. Upon consideration of the filings before the Court, the relevant statutes and case law, and the entire record herein, the Court shall grant Defendant’s Motion with respect to all Counts except Count VI with respect to Plaintiff Card and Plaintiff AFGE.
The central question in this case is whether ATSA § 111(d), 49 U.S.C. § 44935 note, exempts the TSA Under Secretary from following the ATSA’s generally applicable personnel management provisions, ATSA § 101(n), 49 U.S.C. § 114(n), when hiring and firing airport security screeners. This Court finds, primarily for the reasons expressed in
Springs v. Stone,
Plaintiffs’ specific claims include that the TSA RIF: (1) violated the ATSA by failing to follow the Act’s Federal Aviation Administration (FAA) personnel management provisions, (2) violated the ATSA and Veterans’ Preference Act of 1944 (“VPA”), 5 U.S.C. § 3901
et seq.,
by not taking into account military service, tenure of employment, and efficiency ratings, (3) violated the Administrative Procedure Act (APA) as an arbitrary and capricious agency action, (4) violated the Age Discrimination in Employment Act (ADEA) by disparately impacting screeners over 40 years old, (5) violated the ATSA § 110(c) by not deploying “a sufficient number of Federal screeners” to conduct screening of all passengers, (6) violated Plaintiffs’ First Amendment rights of free speech and association by disparately impacting union activists, and (7) violated Plaintiffs’ Fifth Amendment due process rights by advertising that RIFed employees were terminated for poor job performance.
See
Compl. ¶¶ 38-39 (Count I — ATSA 101),
For the reasons that follow, the Court shall dismiss all of Plaintiffs’ claims except Count VI with respect to Plaintiff Card, because: (1) the TSA RIF did not violate ATSA § 101 by failing to establish the FAA’s personnel management system for screeners, because ATSA § 111(d) exempts the TSA from that requirement with respect to screeners, (2) the TSA RIF did not violate the ATSA or the Veterans’ Preference Act by not taking into account military service, tenure of employment, and efficiency ratings, because ATSA § 111(d) grants the TSA power to incorporate or not incorporate such standards into screener terminations at the TSA’s discretion, (3) this Court does not have jurisdiction to adjudicate Count III, because the ATSA commits RIF procedures to TSA discretion, (4) Count IV has failed to state a claim upon which relief can be granted, because under the ADEA, claims of discrimination based on disparate impact are not cognizable, (5) TSA screeners are not within the “zone of protection” of ATSA § 110(c), and so lack standing to pursue Count V, (6) Plaintiffs, except for Plaintiff Card, have failed to state a claim under the First Amendment, because they fail to allege that their termination was in any way causally connected with their union activities, and (7) Plaintiffs have failed to state a claim under the Fifth Amendment, because they fail to allege that the “disparaging” Press Release so seriously hampered or constrained their employment opportunities as to deprive them of a liberty interest protected by the 5th Amendment.
I: BACKGROUND
A. Statutory Framework
Less than ten weeks after the September 11, 2001 terrorist hijackings of four commercial airliners, Congress enacted the Aviation and Transportation Security Act (“ATSA”), Pub.L. No. 107-71, 115 Stat. 597 (2001), as codified in 49 U.S.C. § 114 et seq., in order to improve airport security. The central feature of the Act is federalization of the nation’s transportation security system through creation of the Transportation Security Administration (“TSA”). Most importantly, Congress mandated that “Not later than 1 year after the date of enactment of this Act, the Under Secretary of Transportation for Security [head of the TSA] shall deploy at all airports in the United States where screening is required under section 44901 of title 49, United States Code, a sufficient number of Federal screeners ... to conduct the screening of all passengers and property....” ATSA § 110(c), 49 U.S.C. § 44901 note.
The legislative history of the ATSA reveals disagreement concerning the employee protections the Act should mandate for TSA airport security screeners. 5 In their final versions, the two provisions at issue in this case provide as follows:
ATSA § 111(d), 49 U.S.C. § 44935 note, provides, in its entirety:
(d) Screener Personnel.' — Notwithstanding 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 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.
ATSA § 101, 49 U.S.C. § 114(n), provides:
(n) Personnel mаnagement system.— The 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 Under Secretary may make such modifications to the personnel management system with respect to such employees as the Under Secretary considers appropriate....
Section 111(d) emerged originally from Senate Bill S. 1447, while section 101 emerged originally from House Bill H.R. 3501. After conference, both provisions appeared in the final bill, Public Law 107-71.
Section 111(d) evolved out of an earlier Senate provision intended to provide the Under Secretary 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 screen-ers hired. The original provision in S. 1447, as introduced on September 21, 2001, provided:
Sec. 10. Training and employment of security screening personnel.
(f) 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 limitations on number of employees imposed by any other law or Executive Order.
In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003). This provision was amended by the Senate on October 10, 2001 by Senate Amendment 1854, to read:
Sec. 10. Training and employment of security screening personnel.
(d) Expedited personnel process.—
(1) Authorization of employment. — The Secretary of Transportation may appoint and fix the compensation of such a number of individuals as may be necessary to carry out section 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 limitations on number of employees imposed by any other law or Executive Order.
(2) 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.
In re TSA and AFGE,
No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). The provision was further amended by Senate Amendment 1881 on October 11, 2001. The purpose of Senate Amendment 1881 was “[t]o authorize the employment, suspension, and termination of airport passenger security screeners without regard to the provision of title 5, United States Code, otherwise applicable to such employees.”
In re TSA and AFGE,
No. WARP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S10520 (Oct.
(d) Screener personnel — Notwithstanding any other provision of law, the Secretary of Transportation may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of such a number of individuals as the Secretary determines to be necessary to carry out the passenger security screening functions of the Secretary under section 44901 of title 49, United States Code.
(e) Strikes prohibited. — An individual employed as a security screener under section 44901 of title 49, United States Code, 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.
In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). No other changes of significance to this case were made to this provision in S. 1447 that differentiate it from the final version appearing in Pub.L. 107-71, cited above.
ATSA § 101, meanwhile, came originally from House bill H.R. 3150, introduced on October 17, 2001. Section 101 provides that the personnel management system of the FAA apply to TSA employees. The FAA personnel management system is more “flexible” than that applicable to most federal employees, in that only enumerated employee protections of federal personnel laws apply, including whistle-blower protection, veterans’ preference, non-discrimination, insurance, and appeals to the Merit Systems Protection Board. See 49 U.S.C. § 40122(g). Importantly, unlike the bill passed by the Senate, the House bill contemplated that section 101’s employee protections would not apply to security screeners, because it mandated only federal oversight of screeners, but not federal employment:
(e) Supervision of screening. — All screening of passengers and property at airports under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administrаtion who shall have the power to order the dismissal of any individual performing such screening.
(f) Limitation on right to strike. — An 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 government entity) employing such individual to perform such screening.
In re TSA and AFGE, No. WA-RP-03-0023 at 9 n. 21 (F.L.R.A. July 7, 2003).
Initially, the House rejected the Senate’s version of the TSA legislation, rejecting on November 1, 2001 H. Arndt. 384, which would replace the text of H.R. 3150 with text identical to S. 1447. Id. Some Representatives objected that S. 1447 “gives the [head of the TSA] broad discretion over pay, health care, whistleblower protection, veterans’ preference, workers’ compensation, and the right to organize.” TSA and AFGE at 10, n. 21 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H7648 (Nov. 1, 2001)). Another Representative criticized the Senate bill for not “even giv[ing] these employees the protection of fair labor standards ... nondiscrimination acts, all of the law that provides family and medical leave.... ” Id. H.R. 3150 — with Section 101 but without federalization of screeners — was passed by the House and sent to conference on November 6, 2001.
The bill that emerged from conference on November 19, 2001 adopted the Senate’s formulation of the Under Secretary’s authority to determine the terms of employment of TSA screeners. Sen. John Rockefeller remarked that the “critical matters” of “health care, worker’s compensation, and civil rights and whistleblower
B. The Reduction in Force
Between April and December 2002, the TSA hired more than 62,000 screening personnel in a “dynamic, high pressure roll-out” to meet Congress’s mandate to “deploy at all airports ... a sufficient number of Federal screeners ... to conduct the screening of all passengers” within one year of the November 19, 2001 enactment of the ATSA. Def.’s Opp’n to Pls.’ Mot. for Prelim. Inj., Ex. 1 (8/25/03 Whitford Deck) (hereinafter “Whitford Decl.”) ¶¶ 5-6. Due to “haphazard or ill-planned deployment of personnel,” however, approximately 400 airports became either overstaffed or understaffed.
Springs v. Stone,
Recognizing that “a traditional seniority-based reduction was not feasible given that all hiring had taken place airport by airport only within the past year,” the TSA Guidance Team responsible for “right-sizing” the screener workforce developed a competency-based process for terminating screeners, based on tests of measuring a screener’s ability to identify x-ray images of prohibited items in luggage, knowledge of screening procedures. Whitford Decl. ¶¶ 11, 20, 22. Due to the May 30, 2003 deadline for eliminating 3,000 screener positions, however, the first phase of the reduction incorporated only a conduct checklist, “which identified previously documented on-the-job conduct and performance issues,” in the competency evaluation.
Id.
¶¶ 22, 25. Officials at overstaffed airports completed the checklists and forwarded them to TSA Headquarters for review.
Id.
¶ 26. Approximately 800 TSA screeners were terminated via letters on May 23 and May 30, 2003. Compl. ¶ 30;
Springs,
All Plaintiffs in this case were among those “RIFed” in late May 2003. Compl. ¶ 30. Plaintiffs’ separation letters stated that separation was as a result of over-staffing resulting from budget allocations and “not for cause.” Id. A TSA press release of May 30, 2003 reassured the public that the screener job cuts would have no impact on security or passenger wait times. Compl., Ex. 4 (5/30/03 TSA Press Release). 7 The press release also stated that:
Whenever possible, normal attrition, including resignations and retirements, is being used for rightsizing at individual airports. Employees may be terminated for cause, including criminal background, failure to pass drug and alcohol tests, and falsification of employment documents. Beyond that, the actual reductions in force are based on job performance.
Id. Plaintiffs Leimer, Card, Moriarty, and Thorton are all veterans. Compl. ¶ 31. Plaintiffs Leimer, Card, Campbell, and Moriarty were all over 40 years old. Id. ¶ 32. All Plaintiffs were union activists. Id. ¶ 33.
Based on the foregoing events and them interpretation of the ATSA provisions, Plaintiffs filed an action in this Court on August 13, 2003, claiming inter alia that TSA’s RIF violated the ATSA by failing to take into account seniority and veterans’ preference as mandated by section 101; violated other federal employee-protection laws, including the VPA protections for veterans, APA protections against arbitrary and capricious agency actions, and ADEA protections against age discrimination; and violated the First and Fifth Amendments to the U.S. Constitution by hampering their freedom to join a union and by making disparaging public remarks in the press release. Following this Court’s denial of Plaintiffs’ Motion for a Preliminary Injunction and deferral of Plaintiffs’ Motion for Class Action Certification, Defendant now moves this Court to dismiss all Plaintiffs’ claims.
II: LEGAL STANDARDS
A. Motion to Dismiss
1. Rule 12(b)(1)
A court must dismiss a case when it lacks subject matter jurisdiction pursuant to Rule 12(b)(1). In general, a motion to dismiss under Federal Rule of Civil Procedure 12(b) should not prevail “unless plaintiffs can prove no set of facts in support of their claim that would entitle them to relief.”
Kowal v. MCI Commc’ns Corp.,
2. Rule 12(b)(6)
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), the court must construe the complaint in a light most favorable to the plaintiffs and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations.
In re United Mine Workers of Am. Employee Benefit Plans Litig.,
B. Standards for Administrative Agency Review
Plaintiffs in this ease challenge the Transportation Security Agency’s construction of the ATSA, specifically, the Agency’s interpretation of the sections 111(d) and 101. The standard for the Court’s review of such challenges is known as
Chevron
review, after the Supreme Court’s decision in
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
If the court finds that “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
Chevron,
Ill: DISCUSSION
The Court first discusses the central question in this case — the meaning of ATSA § 111(d), 49 U.S.C. § 44935 note— and then addresses Plaintiffs’ Counts I to VII in turn.
A. The Meaning of ATSA § 111(d), 19 U.S.C. § 44935 note
The central question in this case is whether ATSA § 111(d), 49 U.S.C. § 44935 note, exempts the TSA Under Secretary from following the ATSA’s generally applicable personnel management provisions, ATSA § 101, 49 U.S.C. § 114(n), when hiring and firing airport security screeners. This question has been previously addressed by the Federal Circuit in
Conyers v. Merit Systems Protection Board,
This Court finds, primarily for the reasons expressed in In re TSA and AFGE (F.L.R.A. July 7, 2003), that ATSA § 111(d), 49 U.S.C. § 44935 note, gives the TSA Under Secretary broad discretion in screener employment decisions. ATSA § 101, 49 U.S.C. § 114(n), governs TSA personnel management only for non-screener TSA employees. The plаin text of the statute shows that Congress intended to invest the TSA Under Secretary with authority to exempt security screeners from the employee protections of otherwise applicable federal personnel laws. Furthermore, the ATSA’s legislative history abolishes any possible ambiguity in the statute’s meaning.
1. The “Plain Meaning” of ATSA Sections 111(d) and 101 Shows That Congress Intended to Invest the TSA Under Secretary with Authority to Exempt Security Screeners from the Employee Protections of Otherwise Applicable Federal Personnel Laws
With respect to statutory construction, the Supreme Court has emphasized that “[i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”
K Mart Corp. v. Cartier, Inc.,
In its entirety, the Section 111(d) reads: Notwithstanding any other provision of law, the Under Secretary of Transportation fоr Security 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 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.
Plaintiffs argue that Section 111(d) does not grant the Secretary discretion to not apply the FAA personnel management system to screeners, because “[bjoth parties agree that ATSA explicitly mandates that the TSA adopt the personnel system in place at the Federal Aviation Administration (FAA) for their employees at large” and “notwithstanding” language should not “negate[] an earlier provision of the same law.” Pls.’ Opp’n at 12, 14 (citing ATSA § 101, 49 U.S.C. § 114(d)). Defendant counters that “[t]he statutory command [of Section 111(d) ] is plain and incontrovertible,” showing “the unambiguously expressed intent of Congress” to give the Under Secretary unfettered discretion concerning airport security screen-er personnel decisions. Def.’s Mem. to Dismiss at 10, 13, 16.
The Court finds that the plain text favors Defendant’s interpretation for several reasons. First, a “notwithstanding” clause “clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.”
Springs,
Plaintiffs make several arguments contesting this conclusion. First, Plaintiffs argue that a “RIF is neither part of employment, appointment, disciplinary action, termination or a term or condition of employment. ...” Pls.’ Opp’n at 13. Plaintiffs contend that “a RIF is not a termination,” but rather “a separation from employment due to reasons unrelated to cause.”
Id.
In support, Plaintiffs cite cases in which courts found that a “reduction-in-force” is not encompassed by “condition of employment,” citing
James v. Von Zemenszky,
Plaintiffs further argue that a “notwithstanding” provision cannot negate an earlier provision of the same law. Pis.’ Opp’n at 14. Rather, Plaintiffs contend that a longstanding rule of construction “mandate[s] that statutes be construed to give effect to every clause.”
United States v. Rodriguez,
For the foregoing reasons, the Court finds that the plain text of Section 111(d) clearly signals Congress’s intention to grant the TSA Under Secretary authority to design a personnel management system for airport security screeners, to include or not include at the Secretary’s discretion provisions of other federal personnel laws, including those in the FAA’s personnel management system in 49 U.S.C. § 40122(g).
2. The Legislative History of ATSA Sections 111(d) and 101 Conclusive- . ly Shows that Congress Intended to Invest the Under Secretary with Authority to Exempt Screeners from . the Employee Protections of Federal Personnel Laws
Not only does the plain text of the statute favor Defendant’s interpretation, but the legislative history of ATSA Sections 111(d) (49 U.S.C. § 44985 note) and 101, (49 U.S.C. § 114(n)) conclusively shows that Congress intended to invest the Under Secretary with Authority to exempt airport security screeners from the employee protections of federal personnel laws. The relevant legislative history includes precursor texts of 111(d) and 101, as well as legislators’ specific comments about 111(d) in the Congressional Record.
First, precursor texts of ATSA § 111(d) show incontestably that Congress intended to allow the Under Secretary to exempt screeners from the employee protections federal personnel laws, including part III of title 5, United States Code. The original version of 111(d) in S. 1447, as introduced on September 21, 2001, provided:
Sec. 10. Training and employment of security screening personnel.
(f) Authorization of Employment. — The Secretary of Transportation is authorized to employ, appoint, and fix the compensatiоn 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 limitations on number of employees imposed by any other law or Executive Order.
In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003). This provision was amended by the Senate on October 10, 2001 by S. Arndt. 1854, to read:
Sec. 10. Training and employment of security screening personnel.
(d) Expedited personnel process.—
(1) Authorization of employment. — The Secretary of Transportation may appoint and fix the compensation of such a number of individuals as may be necessary to carry out section 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 limitations on number of employees imposed by any other law or Executive Order.
(2) 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.
In re TSA and AFGE,
No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). The provision was further amended by S. Arndt. 1881 on October 11, 2001. The purpose of S. Arndt. 1881 was “[t]o author
(d) Screener personnel. — Notwithstanding any other provision of law, the Secretary of Transportation may employ, appоint, discipline, terminate, and fix the compensation, terms, and conditions of employment of such a number of individuals as the Secretary determines to be necessary to carry out the passenger security screening functions of the Secretary under section 44901 of title 49, United States Code.
(e) Strikes prohibited. — An individual employed as a security screener under section 44901 of title 49, United States Code, 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.
In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003). No other changes of significance to this case were made to this provision in S. 1447 that differentiate it from the final version appearing in Pub.L. 107-71, cited above.
After examining S. Arndt. 1881 in particular, it is clear that the Senate intended to invest the Under Secretary with authority to exempt screeners from the employee protections of federal personnel laws, particularly part III of title 5, United States Code. The amendment expressly deletes the requirements from the earlier version that employment of screeners be “in accordance with the provisions of part III, title 5, United States Code.” A clearer demonstration of the Senate’s intent that employment of screeners need not be “in accordance with the provisions of part III, title 5, United States Code” is hard to imagine. As such, the legislative history of Section 111(d) as it evolved through various drafts in the Senate clearly shows that the Senate intended to grant the Under Secretary broad discretion to exempt screeners from federal personnel laws.
Second, because the House bill with the precursor to ATSA § 101 did not originally contemplate federalization of screeners, the House did not contemplate that the personnel management system called for in ATSA § 101 would apply to screeners. ATSA § 101 came originally from House bill H.R. 3150, introduced on October 17, 2001. Section 101 provides that the personnel management system of the FAA apply to TSA employees. The FAA personnel management system is more “flexible” than that applicable to most federal employees, in that only enumerated employee protections federal personnel laws apply, including whistleblower protection, veterans’ preference, non-discrimination, insurance, and appeals to the Merit Systems Protection Board. See 49 U.S.C. § 40122(g). Importantly, unlike the bill passed by the Senate, the House bill contemplated that section 101’s employee protections would not apply to security screeners, because it mandated only federal oversight of screeners, but not federal employment:
(e) Supervision of screening. — -All screening of passengers and property at airports under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administration who shall have the power to order the dismissal of any individual performing such screening.
(f) Limitation on right to strike. — -An individual that screens passengers or property, or both, at an airport undеr this section may not participate in a strike, or assert the right to strike, against the person (including a government entity) employing such individual to perform such screening.
In re TSA and AFGE, No. WA-RP-03-0028 at 9 n. 21 (F.L.R.A. July 7, 2003).
Initially, the House rejected the Senate’s version of the TSA legislation, rejecting on November 1, 2001 H. Arndt. 384, which would replace the text of H.R. 3150 with text identical to S. 1447. Id. Some Representatives objected that the Senate bill “gives the [head of the TSA] broad discretion over pay, health care, whistle-blower protection, veterans’ preference, workers’ compensation, and the right to organize.” TSA and AFGE at 10 n. 21 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H7648 (Nov. 1, 2001)). Another Representative criticized the Senate bill for not “even giv[ing] these employees the protection of fair labor standards ... nondiscrimination acts, all of the law that provides family and medical leave.... ” Id. H.R. 3150 — with section 101 but without federalization of screeners — was passed by the House and sent to conference on November 6, 2001. As such, the House Representatives clearly understood that the Senate bill did not provide to security screeners the protections of federal personnel laws.
The bill that emerged from conference on November 19, 2001 adopted the Senate’s formulation of the Under Secretary’s broad authority to determine the terms of employment of TSA screeners. Senator John Rockefeller remarked that the “critical matters” of “health care, worker’s compensation, and civil rights and whistleblower protection ... are left to the discretion of the Department of Transportation.... ” In re TSA and AFGE, No. WA-RP-03-0023 at 7 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S11982 (Nov. 16, 2001)). House Representative Janice Schakowsky expressed her “understanding that the Secretary is given the authority to determine 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.” In re TSA and AFGE, No. WARP-03-0023 at 11 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H8313 (Nov. 16, 2001)). Both Congresspersons expressed their “hope[s] that the Secretary will act to give those benefits and rights to federal screeners and security workers.” Id. Importantly, the FAA personnel management system in Section 101 provides for retirement options, and coverage by non-discrimination, whistleblower, health and safety laws — if the Congresspersons believed Section 101 applied to security screeners, they would have neither acknowledged that the Secretary had authority to withhold such protections, nor expressed their hopes that the Secretary would in his discretion choose to provide the protections. See 49 U.S.C. § 40122(g). It was therefore clear to the Congresspersons that Section 101 did not apply to airport security screeners.
In short, the plain text and legislative history conclusively show that Congress did not intend for ATSA § 101 to apply to airport security screeners. Instead, in enacting ATSA § 111(d), Congress intended to invest the Under Secretary with authority to exempt airport security screeners from the employee protections оf federal personnel laws.
9
As such, in examining
B. The TSA RIF Did Not Violate the ATSA by Failing to Adopt the FAA Personnel Management System for Security Screeners (Count I)
In Count I, Plaintiffs claim that the TSA RIF violated the ATSA, because “ATSA [§ 101] explicitly mandates that the Federal Aviation Administrations’s (FAA) personnel management system as defined in 49 U.S.C. § 40122 shall apply to” TSA security screeners. See Compl. ¶¶ 20-21, 38-39 (Count I—ATSA 101).
As discussed above, ATSA § 101 does not apply to TSA security screeners. ATSA § 101 directs the TSA to establish for most of its employees the FAA personnel management system in 49 U.S.C. § 40122. ATSA § 111(d) grants the TSA Under Secretary authority not to establish such a personnel management system for airport security screeners. Consequently, the May 2003 TSA RIF of security screen-ers did not violate the ATSA by allegedly failing to follow FAA personnel management practices pursuant to 49 U.S.C. § 40122. Count I of Plaintiffs’ Complaint is therefore dismissed.
C. The TSA RIF Did Not Violate the ATSA and Veterans’ Preference Act of 191k, 5 U.S.C. § 3901 et seq., by Not Taking Into Account Military Service, Tenure of Employment, and Efficiency Ratings (Count II)
In Count II, Plaintiffs claim that the May 2003 TSA RIF violated the ATSA and Veterans’ Preference Act of 1944 by not taking into account militаry service, tenure of employment, and efficiency ratings. Compl. ¶¶ 40-41 (Count II—VPA). Plaintiffs argue that ATSA § 101 mandates that FAA’s personnel management system under 49 U.S.C. § 40122 applies to TSA security screeners. See ATSA § 101, 49 U.S.C. § 114(n). Plaintiffs contend that “[pjursuant to § 40122(g)(1), [the] FAA expressly incorporates the provisions of Title 5 relating to sections 2208-3320 for veterans’ preference,” and “[t]he FAA RIF procedures are consistent with the Veterans’ Preference Act of 1944.” Compl. ¶¶ 22-25.
As discussed above, while ATSA § 101 directs the TSA to establish for most of its employees the FAA personnel management system in 49 U.S.C. § 40122, ATSA § 111(d) grants the TSA Under Secretary authority not to establish such a personnel management system for airport security screeners. In enacting ATSA § 111(d) Congress intended to invest the Under Secretary with authority to exempt airport
D. The Court Does Not Have Jurisdiction to Review the TSA RIF Standard Under the APA Because ATSA § 111(d) Commits Design of a RIF to Agency Discretion (Count III)
In Count III, Plaintiffs claim that “[t]he TSA RIF ‘standard’ is arbitrary and capricious agency action in violation of the APA, 5 U.S.C. § 706.” See Compl. ¶¶42-43 (Count III—APA). By the RIF “standard,” Plaintiffs refer to the fact that the first phase of the RIF incorporated only a conduct checklist, which identified previously documentеd on-the-job conduct and performance issues. Whitford Decl. ¶¶ 22, 25. Approximately 800 TSA screeners were terminated via letters on May 23 and May 30, 2003 in this phase. Compl. ¶ 30;
Springs,
The Administrative Procedure Act (“APA”) provides that “[t]he reviewing-court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency.
See Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co.,
In this case, Plaintiffs ask the Court to review the TSA’s RIF standard against FAA RIF standards that Plaintiffs contend the TSA was bound to follow under 49 U.S.C. § 114(n). In the foregoing analysis, the Court determined pursuant to the first step of the
Chevron
analysis that 49 U.S.C. § 114(n) does not apply to TSA airport security screeners.
See supra
§ 111(A). The ATSA “offers no guidance on how TSA should implement a RIF,” but instead ATSA § 111(d) “explicitly authorizes the exercise of broad discretion not constrainеd by the judicial review provisions contained in the APA.”
Springs,
E. Plaintiffs Claim that the TSA RIF Violated the Age Discrimination in Employment Act by Disparately Impacting Screeners Over 4,0 Years Old Fails to State a Claim (Count IV)
In Count IV, Plaintiffs claim that “[t]he RIF procedure violates the Age Discrimination in Employment Act (ADEA), 29 USCA § 621 et seq., in that it disparately impacts employees over 40 years old.” See Compl. ¶¶ 44-46 (Cоunt IV— ADEA). Because the ADEA is not part of federal personnel laws, TSA’s security screeners are entitled to the ADEA’s protection. See supra, Section 111(A). Plaintiffs’ ADEA claims shall be dismissed, however, because under the ADEA, claims of discrimination based on disparate impact are not cognizable.
A claim of disparate impact is predicated on “proof that the employer utilizes ‘employment practices that are facially neutral in their treatment of different
Although neither the Supreme Court nor this Circuit has expressly decided the issue, see Hazen Paper Co. v. Biggins,507 U.S. 604 , 610,113 S.Ct. 1701 ,123 L.Ed.2d 338 (1993) (“we have never decided whether a disparate impact theory of liability is available under the ADEA”); Roger v. Reno,98 F.3d 631 , 639 (D.C.Cir.1996) (“assum[ing] without deciding that disparate impact analysis applies to age discrimination claims”); two District of Columbia district court decisions subsequent to Roger have concluded that the ADEA does not allow for disparate impact claims. See Evans v. Atwood,38 F.Supp.2d 25 , 30 (D.D.C.1999) (finding ADEA does not allow for disparate impact claims because its text does not specifically provide for such claims); Hyman v. First Union Corp.,980 F.Supp. 38 , 41 (D.D.C.1997) (finding claim of liability based on disparate impact theory not cognizable under ADEA). In addition, the D.C. Circuit recently has observed (in a different context) that the Supreme Court “has been reluctant to extend the disparate impact theory to other laws prohibiting discrimination even where the statutory language bears greater resemblance,” citing Hazen as an example. Contractors’ Labor Pool, Inc. v. NLRB,323 F.3d 1051 , 1060 (D.C.Cir.2003) ... As the Tenth Circuit has held, “[t]he [Suprеme] Court, although not expressly ruling on the issue, indicated in dicta that the ADEA only prohibits intentional discrimination.” Ellis v. United Airlines, Inc.,73 F.3d 999 , 1008 (10th Cir.1996).
Def.’s Mem. to Dismiss at 23-24.
To counter this argument, Plaintiffs submit only that “[w]hile Defendant is accurate that two U.S. District Courts for the District of Columbia have found that the language of the ADEA does not support a finding of disparate impact liability, this Circuit has not so ruled. Thus, while the lower court rulings are persuasive, they are not binding.” Pis.’ Reply at 18. While so much is true, two rulings from the instant District that claims of discrimination based on disparate impact are not cognizable under the ADEA are far more persuasive to this Court than Plaintiffs’ mere assertion that those rulings are not binding and a complete lack of argument supporting an alternate finding.
Hyman
and
Evans
both firmly concluded that “the ADEA does not allow for disparate impact claims,” after examining relevant Supreme Court precedent including
Hazen Paper Co. v. Biggins,
Under Rule 12(b)(6), “Plaintiffs’ factual allegations must be presumed true and
F. Plaintiffs Lack Standing to Pursue Their Claim that the TSA RIF Violated the ATSA § 110(c) by Not Deploying “a sufficient number of Federal screeners’’ (Count V)
In Count V, Plaintiffs claim that “Defendant violated ATSA in that it did not deploy within the year requirement ‘a sufficient number of Federal screeners’ to conduct screening of all passengers.” See Compl. ¶¶ 47-48 (Count V—ATSA 110(c)). Plaintiffs lack standing to pursue this claim.
A party seeking judicial review of administrative agency action under the APA must establish both constitutional and prudential standing.
10
See American Federation of Gov’t Employees, Local 2119 v. Cohen,
To apply the “zone of interests” test, a court must “first discern the interests ‘arguably ... to be protected’ by the statutory provision at issue; [the court must] then inquire whether the plaintiffs interests affected by the agency action in question are among them.”
Cohen
In this case, Plaintiffs challenge the TSA’s implementation of ATSA § 110(c), which reads:
Not later than 1 year after the date of enactment of this Act, the Under Secretary of Transportation for Security shall deploy at all airports in the United States where screening is required under section 44901 of title 49, United States Code, 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 under section 44901 of such title at such airports.
Pub.L. 107-71, 115 Stat. 597, 616, 49 U.S.C. § 44901 note. This Court must first discern the interests “arguably ... to be protected” by this provision. These interests could not be more obvious. Less than ten weeks after the September 11, 2001 terrorist hijackings of four commercial airliners, Congress enacted the Aviation and Transportation Security Act (“ATSA”), Pub.L. No. 107-71, 115 Stat. 597 (2001), captioned “An act to improve airport security, and for other purposes.” The provision above was meant to deploy the Act’s new security measures as rapidly as possible.
The Court next inquires whether the TSA security screeners’ interest in protecting their employment is arguably to be protected by the provision. Clearly, Congress directed that a “sufficient number of Federal screeners” be deployed to “conduct the screening of all passengers and property,” in order to “improve airline security,” not to provide employment оpportunities. Congress directed that the federalization take place “[n]ot later than 1 year after the date of enactment of this Act” as a security measure to prevent a second September 11th, not as an employment program. In addition, as Defendant points out, “Plaintiffs’ interest in securing a de facto status quo distribution of screeners is particularly inconsistent with ATSA’s purpose to ensure aviation security in a time where the reality of budget constraints has forced TSA to reassess how most effectively to deploy its screener workerforce.” Def.’s Reply at 6. Finally, Congress unambiguously intended with ATSA 111(d) to invest the Under Secretary of Transportation for Security with broad discretion to hire and fire security screeners.
In
Air Courier Conference v. American Postal Workers Union,
the Supreme Court reversed a Court of Appeals ruling that U.S. postal workers had prudential standing to challenge a rule suspending the Postal Service’s statutory monopoly in the international remailing market.
[T]he fаilure of an agency to comply with a statutory provision requiring ‘on the record’ hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be ‘adversely affected within the meaning’ of the statute.
Air Courier Conference,
Similarly, it is abundantly clear that ATSA § 110(c)(1), requiring the Under Secretary of Transportation to deploy “a sufficient number of Federal screeners” not later than one year after November 19, 2001, was meant to protect the interests of the traveling public, and not the employment of the screeners.
See Springs,
G. No Plaintiff, Except Plaintiff Card, Has Alleged that His Union Activities, Protected by the First Amendment, Were a Substantial Motivating Factor in His Selection for the RIF (Count VI)
In Count VI, Plaintiffs claim that “[t]he RIF standard as applied disparately impacted on union activists and as such аbrogates Plaintiffs’ right of free association under the First Amendment of the U.S. Constitution.” See Compl. ¶¶ 49-51 (Count VI — 1st amend.). This Count shall be dismissed with respect to all Plaintiffs except Plaintiff Card because there is no disparate impact theory in First Amendment law, and because Plaintiffs, except Plaintiff Card, have failed to state a claim because they have not alleged that their union activity was a substantial motivating factor in their selection for the RIF.
First Amendment claims by government employees must satisfy a four-part test to succeed: (1) The employee must have been speaking on a matter of public concern; (2) the employee’s interest in speaking must outweigh the government’s interest in promoting the efficiency of public services; (3) the employee must show that his speech was a substantial motivating factor in prompting the retaliatory act of which he complains; and (4) the employee must negate the employer’s showing, by a preponderance of the evidence, that the employer would have reached the same decision even in the absence of the protected conduct.
AFGE v. Loy,
First, Plaintiffs assert a First Amendment claim under a theory that they themselves admit cannot form the basis of a claim under First Amendment law. Plaintiffs argue that “[t]he RIF standard as applied disparately impacted on union activists and as such abrogates Plaintiffs’ right of free association under the First Amendment of the U.S. Constitution,” while concomitantly conceding that “there is ‘no disparate impact theory in First Amendment law.’ ” Pls.’ Mem. for Prelim. Inj. at 15 (quoting
Terry v. Reno,
Second, Plaintiffs have failed to state a claim because they fail to allege in the Complaint that their union activities were a substantial motivating factor in prompting their dismissal during the late May 2003 reduction-in-force. The only factual allegations concerning union activities in the Complaint are: (1) an allegation that Plaintiff Leimer “was an AFGE activist” and “wrote a letter to Federal Security Director (FSD) Milano in defense of unions and unionism,” (2) Plaintiff Card’s declaration that “[mjanagement knew of [his] union activities and [he] was disciplined by TSA for lawfully discussing the union while off duty at the airport’s break room,” (3) an allegation that Plaintiff Mоriarty “was an AFGE activist” and “[m]an-agement knew of his activism as they maintained a list of union supporters .... ” and (4) all plaintiffs were union activists. Compl. ¶¶ 4-5, 7, 33 & Ex. 18 (8/12/03 Card Declaration).
Importantly, nowhere do Plaintiffs assert that the TSA based its selection of Plaintiffs for the RIF on union membership. Plaintiffs assert only that “[t]he arbitrary and capricious nature of whom to RIF
left open the possibility
for large numbers of union activists to be RIFed” because the TSA had previously disciplined screeners for union activities, and the first phase of the RIF incorporated a conduct checklist which documented on-the-job conduct. Pls.’ Mem. for Prelim. Inj. at 15 (emphasis added); Whitford Decl. ¶¶ 11, 20, 22, 25. Yet Plaintiffs have only alleged in their Complaint that a single Plaintiff — Plaintiff Card — had any documented disciplinary incidents related to union activities which could have been incorporated into his conduct checklist, and hence into TSA’s decision to select him for the RIF. Nowhere do Plaintiffs allege that Defendant specially selected union members for the RIF, or applied to union activists any termination procedure apart from that described by Defendant.
11
In other words, Plaintiffs fail to allege any causal
As such, with the exception of Plaintiff Card, Plaintiffs have failed to state a claim under the First Amendment because they fail to allege that their union aсtivity was a substantial motivating factor in prompting their selection for the RIF. Count VI of Plaintiffs’ Complaint is therefore dismissed with respect to all Plaintiffs except Plaintiff Card and AFGE. 12
H. Plaintiffs Have Failed to State a Claim Under the Fifth Amendment, Because They Fail to Allege that the TSA Press Release Allegedly Stigmatizing RIFed Screeners for Poor Job Performance Seriously Hampered or Precluded Them From Pursuing Their Chosen Profession (Count VII)
In Count VII, Plaintiffs claim that “[t]he RIF standard as applied abrogates Plaintiffs’ due process and liberty interests under the Fifth Amendment of the U.S. Constitution” because “the Defendant has advertised through its press releases it selected employees for the RIF based on prior disciplinary incidents or for poor job performance,” and Plaintiffs had no opportunity to contest the conduct checklist upon which their termination was partially based. See Compl. ¶¶ 52-55 (Count VII—5th amend.).
A claim of deprivation of liberty under the Fifth Amendment may arise when the government imposes upon a terminated employee a stigma or other disability so severe that it forecloses the employee’s freedom to take advantage of other employment opportunities within his chosen profession.
See O’Donnell v. Barry,
In this case, Plaintiffs have failed to allege that any stigma created by TSA was sufficiently serious to constrain their liberty interest. Plaintiffs allege that a TSA press release of May 30, 2003 that reassured the public that the screener job cuts would have no impact on security or passenger wait times also stigmatized the RIFed employees. Compl., Ex. 4 (5/30/03 TSA Press Release). The press release stated that:
Security continues at the same high level and passenger wait times remain low even as the Transportation Security Administration implements its plan for rightsizing the screener work force publicly announced by TSA Administrator Adm. James M. Loy on April 30.
The rightsizing effort, which started in March, has reduced 3,000 positions from the TSA rolls ... The plan, driven in part by budget constraints, called for eliminating 3,000 positions by May 31 and another 3,000 by Sept. 30.
“By ensuring that security checkpoints are fully staffed during peak times we have been able to make staffing аdjustments that largely have gone unnoticed by travelers,” Admiral Loy said. ******
“We are staying sharply focused on security as we make these changes,” Admiral Loy said. “When we are done, the public will have a leaner, more effective screener work force, comprised of the best people for the jobs.”
Whenever possible, normal attrition, including resignations and retirements, is being used for rightsizing at individual airports. Employees may be terminated for cause, including criminal background, failure to pass drug and alcohol tests, and falsification of employment documents. Beyond that, the actual reductions in force are based on job performance.
Compl., Ex. 4 (5/30/03 TSA Press Release).
Upon examination of this allegedly stigmatizing public statement, it is clear for several reasons that the alleged stigma is not serious enough to deprive Plaintiffs of a liberty interest in pursuing their chosen profession. First, nowhere have Plaintiffs alleged that this Press Release has foreclosed or seriously hampered their opportunities for future employment. Indeed, the text of the Press Release cannot support such an inference. While it mentions job performance as a criterion in selecting employees for the reduction in force, the Press Release states that “[w]henever possible, normal attrition, including resignations and retirements, is being used for rightsizing at” airports. It also states that the reductions are driven in part by “budget constraints.” Moreover, all Plaintiffs received separation letters stating that their particular terminations were “as a result of overstaffing resulting from budget allocations and ‘not for cause.’ ” Compl. ¶ 30. Plaintiffs fail to suggest how these letters would be insufficient to demonstrate to future potential employers that poor performance was not a factor in their selection for the RIF. In fact, Plaintiffs’ most serious allegation about the impact of the Press Release on Plaintiffs is that “Plaintiff Leimer’s reputation has also been tarnished in his community. As the RIF in Syracuse occurred at the same time as the press was reporting that Defendant was terminating screeners for criminal backgrounds, his neighbors wrongfully believed that he was terminated for cause.” Pis.’ Mem. for Prelim. Inj. at 16. Under the above-articulated standards for establishing a claim of depriva
Finally, the Press Release does not name any individual Plaintiffs. No cases cited by Plaintiffs or reviewed by this Court have involved public statements impugning an unnamed class of discharged employees; rather, all cases have involved public statements impugning specific named employees. The stigmatizing public statements in these cases were of such gravity that the employee was seriously hampered or precluded from pursuing his chosen profession.
See, e.g., Kartseva,
In short, to state a claim of deprivation of liberty to pursue one’s chosen profession in violation of the Fifth Amendment, Plaintiffs must allege that a public statement by the government accompanying their discharge was so severe as to preclude or seriously hamper them from obtaining future employment in their chosen field. Plaintiffs fail to allege that the May 30, 2003 TSA Press Release stigmatized them so severely that it precluded or seriously hampered them from obtaining future employment, and upon examination the Release does not support such an inference. Count VII of Plaintiffs’ Complaint is therefore dismissed.
IV: CONCLUSION
For the reasons set forth above, the Court shall grant Defendant’s Motion to Dismiss all Plaintiffs’ claims except Count VI with respect to Plaintiff Card and Plaintiff AFGE. An appropriate Order accompanies this Memorandum Opinion.
ORDER
For the reasons set forth in the accompanying Memorandum Opinion, it is, this 21st day of August, 2006, hereby
ORDERED that [10] Defendant’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART; it is also
ORDERED that all of Plaintiffs’ claims except for Count VI with respect to Plaintiff Card and Plaintiff AFGE are DISMISSED; it is also
ORDERED that Plaintiffs’ [15] Motion for Certification of Class is DENIED WITHOUT PREJUDICE; it is also
ORDERED that the remaining Parties are to file a Joint Status Report by September 22, 2006, indicating how they wish to proceed.
Notes
. Formerly James Loy. Edmund Hawley was automatically substituted pursuant to Federal Rule of Civil Procedure 25(d).
. Hereinafter "Under Secretary,” in keeping with the terminology of the original ATSA. The title of the head of the TSA changed from Under Secretary to Administrator when the
. With the exception of the AFGE.
. As used in this Opinion, the term “federal personnel laws” refers specifically to federal laws governing terms and conditions of employment for federal civil servants. As used in this Opinion, “federal personnel laws” does not encompass federal employment laws, such as the Age Discrimination in Employment Act (ADEA), that apply generally to federal and private sector employees alike.
. Except as otherwise noted, the source of these facts is the thorough compilation of legislative history of ATSA §§ 111(d) and 101 in In re TSA and AFGE, No. WA-RP-03-0023 (F.L.R.A. July 7, 2003).
. The "right-sizing” plan is also known as a Reduction In Force, or "RIF.”
. Plaintiffs' exhibits are in fact attached to their Motion for Preliminary Injunction, and
. In
Whitman v. Department of Transportation,
- U.S. -,
. As in
Springs v. Stone,
"[b]oth parties devote discussion in their memoranda to the implications of
Chevron U.S.A., Inc.
v.
Natural Resources Defense Council,
. Plaintiffs have not specified the statute authorizing them to sue the TSA for the alleged violation of ATSA § 110(c). See Compl. ¶ 48 (“Defendant violated ATSA in that it did not deploy within the year requirement ‘a sufficient number of Federal screeners' to conduct the screening of all passengers.”). The Court can only assume that Plaintiffs seek review of the TSA's alleged violation of this provision under the APA; the prospect that Congress intended to create a private cause of action for a violation of ATSA § 110(c)(1) does not warrant a discussion.
See Alexander v. Sandoval,
. In their pleadings opposing Defendant’s Motion to Dismiss, the extent of Plaintiffs’ discussion of their 1st Amendment claim is the following: "TSA’s RIF standard as applied violates Plaintiffs’ First Amendment rights. The First Amendment ... guarantee[s] a government employee the right to [unionize]. In fact, the Supreme Court has characterized 'the right to organize and select representatives for lawful purposes of collective bargaining ... as a fundamental right .... ’ When the Defendant used unlawful RIF standards, he violated the Plaintiffs’ constitutional and fundamental right to organize collectively and placed an undue and improper chilling effect on their right to engage in associational activities.” Pls.' Opp’n at 19 (citations omitted).
. Defendant’s Memorandum in support of its Motion to Dismiss focuses on individual Plaintiffs, only very briefly arguing in a footnote in the context of Plaintiffs' ADEA claim that "[i]t is particularly unlikely that AFGE has associational standing to pursue this claim” because “the suit ultimately will require individualized proof concerning the specific action(s) taken against each employee.” Def.’s Mem. to Dismiss at 22-23 n. 15.
See AFGE v. Stone,