558 F.3d 137 (2nd Cir. 2009), 07-4095, Conyers v. Rossides

Docket Nº:07-4095-cv.
Citation:558 F.3d 137
Party Name:Vincent Curtis CONYERS, Plaintiff-Appellant, v. Gale D. ROSSIDES, in her official capacity as Acting Administrator, Transportation Security Administration, United States Department of Homeland Security,[*] Defendant-Appellee.
Case Date:March 03, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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558 F.3d 137 (2nd Cir. 2009)

Vincent Curtis CONYERS, Plaintiff-Appellant,


Gale D. ROSSIDES, in her official capacity as Acting Administrator, Transportation Security Administration, United States Department of Homeland Security,[*] Defendant-Appellee.

No. 07-4095-cv.

United States Court of Appeals, Second Circuit.

March 3, 2009

Argued: Dec. 9, 2008.

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Vincent Curtis Conyers, Plaintiff-Appellant, pro se.

Thomas A. McFarland, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, of counsel), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Central Islip, NY, for Defendant-Appellee.

Before: KEARSE, RAGGI, and LIVINGSTON, Circuit Judges.

REENA RAGGI, Circuit Judge:

Plaintiff Vincent Curtis Conyers, proceeding pro se, appeals from a July 30, 2007 judgment of the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, Judge ), dismissing his complaint against the Administrator of the Transportation Security Administration (" TSA" ), arising out of defendant's 2002 refusal to hire plaintiff as an airport security screener. We agree that the district court lacked jurisdiction to review plaintiff's Administrative Procedure Act claim, and we hold that defendant is entitled to judgment on the pleadings with respect to plaintiff's Veterans Employment Opportunities Act and constitutional claims. We therefore affirm.

I. Background

We briefly review the relevant statutory framework before discussing the factual background and legal merits of Conyers's appeal.

A. The Aviation and Transportation Security Act

Following the " terrorist hijacking and crashes of passenger aircraft on September 11, 2001, which converted civil aircraft

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into guided bombs for strikes against the United States," Congress identified a need for " a fundamental change in the way [the United States] approaches the task of ensuring the safety and security of the civil air transportation system." H.R.Rep. No. 107-296, at 53 (2001) (Conf.Rep.), reprinted in 2002 U.S.C.C.A.N. 589, 590. Accordingly, on November 19, 2001, it enacted the Aviation and Transportation Security Act (" ATSA" ), Pub.L. No. 107-71, 115 Stat. 597 (2001) (codified principally in scattered sections of 49 U.S.C.). The ATSA " broadly expand[ed] the government's control over, and active role in, aviation security" through the creation of the TSA. Kent C. Krause, " Putting the Transportation Security Administration in Historical Context," 68 J. Air L. & Com. 233, 244 (2003).

The TSA is headed by an Administrator,1 whom Congress has made " responsible for security in all modes of transportation, including," most notably, " civil aviation security." 49 U.S.C. § 114(d). The Administrator is required, inter alia, to " provide for the screening of all passengers and property ... that will be carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation." Id. § 44901(a).2 To ensure that this mandate was carried out promptly, the ATSA required the Administrator, " [n]ot later than 1 year after" the passage of the Act, to " deploy at all airports in the United States where screening is required ... a sufficient number of Federal screeners, Federal Security Managers, Federal security personnel, and Federal law enforcement officers to conduct the screening of all passengers and property" as required by statute. Id. § 44901 note. The instant action concerns an application for a security screener position filed by plaintiff Conyers during this critical one-year period.

The ATSA contains two sets of provisions that address the means by which TSA applicants and employees are to be assessed, hired, evaluated, and terminated. First, Section 101 of the Act provides, in relevant part, that

[t]he personnel management system established by the Administrator of the Federal Aviation Administration under [49 U.S.C.] section 40122 shall apply to employees of the Transportation Security Administration, or, subject to the requirements of such section, the [TSA Administrator] may make such modifications to the personnel management system with respect to such employees as [he] considers appropriate, such as adopting aspects of other personnel systems of the Department of Transportation.

Id. § 114(n). Section 40122 of Title 49, in turn, provides that " [t]he provisions of title 5" -that portion of the United States Code dealing with " Government Organization

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and Employees" -" shall not apply" to the FAA's personnel management system, with certain explicitly listed exceptions, including provisions concerning whistleblower protection, veterans' preference in hiring, labor-management relations, and appeals to the Merit Systems Protection Board. Id. § 40122(g)(2).

Second, the ATSA contains several provisions applicable only to " security screeners." For example, the Act mandates that security screeners possess " a high school diploma" or other equivalent experience; " basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills" ; and the ability " to read, speak, and write English well enough to" perform various screening-related tasks. Id. § 44935(f)(1). The Act also requires the Administrator to " provide a preference for the hiring of an individual as a security screener if the individual is a member or former member of the armed forces." Id. § 44935(f)(2). Finally, and most broadly, Section 111(d) of the ATSA provides:

Screener Personnel.... Notwithstanding any other provision of law, the [Administrator] may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the [Administrator] determines to be necessary to carry out the screening functions [required by the Act]. The [Administrator] shall establish levels of compensation and other benefits for individuals so employed.

Id. § 44935 note (internal quotation marks omitted).

The legislative history indicates that " Section 111(d) evolved out of an earlier Senate provision intended to provide the [Administrator] with authority to hire (i) any necessary number of screeners, without regard to any limitation on the number imposed by any law or Executive Order, (ii) but with the employee protections of part III of title 5 applicable to all screeners hired." American Fed'n of Gov't Employees TSA Local 1 v. Hawley, 481 F.Supp.2d 72, 77 (D.D.C.2006) (discussing original Senate proposal 3). An amendment introduced by Senator McCain on October 11, 2001, however, replaced the original proposal with language substantially identical to the current language of Section 111(d). Id. 4 The stated purpose of this amendment was " ‘ [t]o authorize the employment, suspension, and termination of airport passenger security screeners without regard to the provisions of title 5, United States Code, otherwise applicable

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to such employees.’ " 147 Cong. Rec. S10,520 (daily ed. Oct. 11, 2001).

Following adoption of this revised language in the final version of the ATSA, several Members of Congress expressed their understanding that Section 111(d) left many matters concerning the employment of security screeners " to the discretion of the" TSA, including " health care, worker's compensation, and civil rights and whistleblower protection." 147 Cong. Rec. S11,982 (daily ed. Nov. 16, 2001) (statement of Sen. Rockefeller); see also 147 Cong. Rec. H8313 (daily ed. Nov. 16, 2001) (statement of Rep. Schakowsky) (" It is my understanding that the Secretary is given the authority to determine whether [screeners] can join a union; participate in the Federal Employees Health Benefit Plan and retirement options; and be covered by non-discrimination, health and safety, and whistleblower laws." ).5

B. Conyers's Application for Employment with the TSA and Prior Litigation

On this appeal, we assume the truth of the facts alleged by the plaintiff in his complaint. See Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir.2008).

In mid-2002, along with more than two million other persons, Conyers applied for various airport security screener positions with the newly created TSA. See Springs v. Stone, 362 F.Supp.2d 686, 690 (E.D.Va.2005) (describing that, " between March and November 2002," the TSA's human resources provider " processed 2,198,505 on-line applications and assessed some 340,000 eligible candidates for screening positions" ). On July 19, 2002, Conyers underwent an employment assessment and was determined to be " ‘ Disqualified/Unqualified’ " for the position of Supervisory Transportation Security Screener at Long Island's MacArthur Airport in Ronkonkoma, New York. Complaint ¶ 20. The letter informing Conyers of this assessment, which is attached as an exhibit to the complaint, states that " the TSA is not able to provide any detailed information regarding your results on the tests or interview. This is a pass/fail assessment system; therefore you will receive no further information by calling the agency, its employees, or its contractors." Id. Ex. 1.

Thereafter, Conyers made " numerous attempts" to " obtain specific information" about or an " administrative review" of his assessment, but was unsuccessful until 2003, when his congressional representative was informed that Conyers " did not pass the physical qualifications examination." 6 Id. ¶ 22 & Ex. 2. Conyers further

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alleges that the TSA determined that his " negative assessment rating was applicable for all employment positions" for which he had applied. Id. ¶ 23.

On October 21, 2002, Conyers...

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