Submitted January 10, 2017 [*]
from a judgment of the United States District Court for the
Eastern District of New York (Vitaliano, J.)
dismissing for lack of subject matter jurisdiction a
complaint seeking judicial review under the Administrative
Procedure Act, 5 U.S.C. § 702, of the employment
termination of a screening officer employed by the
Transportation Security Administration ("TSA").
that the Aviation and Transportation Security Act, 49 U.S.C.
§ 44935 note, commits the termination of the employment
of TSA screeners to the unreviewable discretion of the TSA
Administrator and that the district court lacks subject
matter jurisdiction to review termination decisions pursuant
to the Administrative Procedure Act, 5 U.S.C. § 701(a).
William A. Roché, The Law Offices of William A.
Roché, P.C., Hicksville, New York, for
Nelson, Rachel G. Balaban, and Dara A. Olds, Assistant United
States Attorneys, of counsel, for Bridget M. Rohde, Acting
United States Attorney for the Eastern District of New York,
Brooklyn, New York, for Defendants-Appellees.
Before: Hall, Droney, Circuit Judges, Oetken, District Judge.
Conyers v. Rossides, 558 F.3d 137, 148 (2d Cir.
2009), cert. denied, 133 S.Ct. 329 (2012), we held
that Section 111(d) of the Aviation Transportation Security
Act, 49 U.S.C. § 44935 note ("ATSA"),
precluded judicial review under the Administrative Procedure
Act, 5 U.S.C. § 701(a) ("APA"), of a decision
by the Transportation Security Administration
("TSA") not to utilize the Federal Aviation
Administration's personnel management system in deciding
whom to employ or appoint as a screening officer. We did not
hold as a general matter that APA review was unavailable for
all personnel decisions regarding TSA screening officers.
See Conyers, 558 F.3d at 148.
case now before us gives us occasion to extend the holding of
Conyers to TSA decisions regarding the termination
of screening officers. For the reasons that follow, we hold
that the ATSA precludes review under the APA of a TSA
decision to terminate a screening officer. We therefore
affirm the district court's dismissal of this matter for
lack of subject matter jurisdiction.
following facts are taken from the complaint and its
attachments, which, on a motion to dismiss, both the district
court and this Court are obliged to view in the light most
favorable to the Plaintiff. See id. at 143.
Melanie Connors was employed by the TSA as security screening
officer, with the title of Expert Behavior Detection Officer,
at Newark Liberty International Airport. She was also the
recording secretary of the Association of Transportation
Security Management and Professionals ("ATSMAP"), a
TSA employee association.
February 2013, several TSA managers received packages
containing lists of names, addresses, telephone numbers, and
email addresses of 185 TSA employees, including several
federal air marshals. The list appeared to have been compiled
from ATSMAP's membership roster. The TSA considers the
identities of federal air marshals to be sensitive security
information ("SSI"), and an FBI investigation
the course of the investigation, Connors told investigators
that it was possible that her personal computer, which
contained the ATSMAP membership roster, might have been
hacked, or that her husband might have accessed and released
the information. The investigation ultimately determined that
neither Connors nor any computer in her home was the ...