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Connors v. United States

United States Court of Appeals, Second Circuit

July 13, 2017

Melanie Connors, Plaintiff-Appellant,
v.
The United States of America and John F. Kelly, Secretary, United States Department of Homeland Security, Defendants-Appellees.

          Submitted January 10, 2017 [*]

         Appeal 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").

         We hold 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 Plaintiff-Appellant.

          Varuni 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. [†]

          PER CURIAM

         In 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.

         The 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.

         I. Background

         The 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.

         Plaintiff-Appellant 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.

         In 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 ensued.

         During 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 ...


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