Vinсent Curtis Conyers petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed, for lack of jurisdiction, his appeal of his non-selection for a position with the Transportation Security Administration (“TSA” or “agency”), a component of the Department of Homeland Security.
Conyers v. Dep’t of Transp.,
No. NY-
*1381
3443-03-0034-1-1,
BACKGROUND
I.
Mr. Conyers applied for the position of Supervisory Transportation Security Screener within TSA. The vacancy announcement for the position statеd that, as a prerequisite for consideration, applicants were required to successfully complete an assessment. The assessment included аn evaluation of the applicant’s mental and physical abilities, interpersonal skills, and medical fitness. In July 2002, Mr. Co-nyers was assessed for the supervisory screener position. He subsequently was informed that he had failed the assessment and that, consequently, TSA would no longer consider his application.
II.
On October 21, 2002, Mr. Conyers filed an appeal with the Board, challenging the agency’s decision not to select him for the screener position. In an initial decision, the administrative judge (“AJ”) to whom the case was assigned dismissed the appeal for lack of jurisdiction. Conyers v. Dep’t of Transp., No. NY-3443-03-0034-1-1 (Feb. 14, 2003). The AJ noted that section 111(d) of the Aviation and Transportation Security Act (“ATSA”), 49 U.S.C. § 44935 note, grants TSA power to appoint applicants to screener positions “notwithstanding any other provision of law.” The AJ dеtermined that this statutory language precluded the Board from asserting jurisdiction over Mr. Conyers’ appeal. The AJ’s initial decision became the final decision of the Board on March 15, 2004, after the Board denied Mr. Conyers’ petition for review for failure to meet the criteria set forth at 5 C.F.R. § 1201.115(d) (2002). This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2004).
ANALYSIS
I.
Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm thе Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without prоcedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2004);
Kewley v. Dep’t of Health & Human Servs.,
II.
The Board has jurisdiction over only those matters that are entrusted to it by stаtute or regulation. 5 U.S.C. § 7701(a);
Meeker v. Merit Sys. Prot. Bd.,
We see no error in the Board’s dismissal of Mr. Conyers’ appeal for lack of jurisdiction. With certain exceptions specified by the Under Secretary of Transportation, TSA is subject to the personnel management system established by the Federal Aviation Administration (“FAA”). See 49 U.S.C. § 114(n) (2002). Thus, the FAA’s personnel management system applies certain personnel provisions of Title 5 specifically enumerated in 49 U.S.C. § 40122(g) (2002). The Title 5 provisions enumerated in section 40122(g) include, among others, 5 U.S.C. § 2302(b), relating to whistle-blower protection, id. §§ 3308-3320, relating to veterans’ preferences, id. § 7204, relating to antidiscrimination, id. § 73, relating to suitability, security, and conduct, and id. §§ 1204, 1211-1218, 1221, 7701-7703, relating to the Board.
While these provisions generally apply to TSA, section 111(d) of the ATSA, codified as a note to 49 U.S.C. § 44935, 2 includes a specific provision regarding TSA security screeners:
Notwithstanding any othеr provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensatiоn, 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.
We agree with the Board that this provision confers upon the Under Secretary greater flexibility regarding sсreener positions than he or she may have with respect to other classes of employees. The language “[njotwithstanding any other provision of law” signals that this screener-specific provision is to override more general conflicting statutory provisions to the extent that they would apply to screeners.
See Cisneros v. Alpine Ridge Group,
The cases cited by Mr. Conyers that interpret “notwithstanding” clauses in other contexts are not inconsistent with our present interрretation of section 111(d) of the ATSA. Generally in the cases cited by Mr. Conyers, courts were required to determine the extent to which such clauses pre-еmpted state law, a question that often may turn on congressional intent.
See, e.g., E.P. Paup Co. v. Dep’t of Labor,
CONCLUSION
Section 111(d) of the ATSA exempts TSA from laws that otherwise would apply to screener positions. As a consequence, the Board is divested of jurisdiction to hear appeals alleging violations of such laws insofar as TSA screener positions are concerned. That is the case here with respect to the position for which Mr. Co-nyers applied. Accordingly, the final decision of the Board dismissing Mr. Conyers’ apрeal for lack of jurisdiction is affirmed.
AFFIRMED
Notes
. Pursuant to the Department of Homeland Security Reorganization Plan (Nov. 25, 2002), as required by Section 1502 of the Departmеnt of Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Slat. 2135 (2002), TSA was transferred from the Department of Transportation to the Department of Homeland Security, effectivе March 1, 2003.
. Contrary to Mr. Conyers' suggestion, the fact that this provision was codified as a statutory note is of no moment. The Statutes at Large provide the evidеnce of the laws of the United States. 1 U.S.C. § 112 (2004).
See United States v. Welden,