American Fed. of Gov. Empls. Tsa Local 1 v. Hawley

• Citation: 481 F.Supp.2d 72
• Decision Date: 21 August 2006
• Docket Number: No. CIV.A. 03-1719(CKK).,CIV.A. 03-1719(CKK).
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, et. al., Plaintiffs, v. Edmund HAWLEY, Administrator, Transportation Security Administration Defendant.
• Court: U.S. District Court — District of Columbia

481 F.Supp.2d 72

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, et. al., Plaintiffs, v. Edmund HAWLEY, Administrator, Transportation Security Administration Defendant.

No. CIV.A. 03-1719(CKK).

United States District Court, District of Columbia.

August 21, 2006.

COPYRIGHT MATERIAL OMITTED

Gony Frieder, Esq., American Federation of Government Employees, Washington, DC, for Plaintiffs.

Samuel C. Kaplan, Esq., U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendant.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

Plaintiffs 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 Hawley¹ in his capacity as Administrator² of the Transportation Security Administration ("TSA"), U.S. Department of Homeland Security, challenging the legality of the TSA's May 2003 Reduction in Force ("RIF"), which implemented a workforce reduction of around 3,000 airport security screeners, including Plaintiffs.³ The reduction was necessitated by initial overstaffing as the TSA rapidly responded to 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 Aviation and Transportation Security Act ("ATSA"), Public Law 107-71 of the 107th Congress. ATSA § 111(n), Pub.L. 107-71, 115 Stat. 597 (2001).

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, 362 F.Supp.2d 686 (E.D.Va.2005), and In re Department of Homeland Security Border and Transportation Security Directorate Transportation Security Administration and AFGE, AFL-CIO, Decision and Order on Petitions, No. WA-RP-03-0023 (F.L.R.A. July 7, 2003) (hereinafter "In re TSA and AFGE "), that ATSA § 111(d), 49 U.S.C. § 44935 note gives the Under Secretary broad discretion to exempt screeners from the protections of federal personnel laws, particularly those in part III of title V, United States Code. ATSA § 101, 49 U.S.C. § 114(n), governs TSA personnel management only for non-screener TSA employees.⁴

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) ¶¶ 40-41 (Count II — VPA), ¶¶ 42-43 (Count III — APA), ¶¶ 44-46 (Count IV — ADEA), ¶¶ 47-48 (Count V — ATSA 110(c)), ¶¶ 49-51 (Count VI-1st amend.), ¶¶ 52-55 (Count VII-5th amend.). Counts I, II, and III are all dependent on whether ATSA § 111(d) or ATSA § 101 governs the TSA's personnel management system for screeners.

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 management 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 screeners 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...