Field v. Napolitano

United States Court of Appeals
For the First Circuit

No. 11-1339

MARTIN FIELD,

Plaintiff,

MAURA FIELD, Administratrix of the
Estate of Martin T. Field, II,

Plaintiff, Appellant,

v.

JANET NAPOLITANO, Secretary,
Department of Homeland Security,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Mitchell J. Notis, with whom the Law Office of Mitchell
J. Notis was on brief, for appellant.
Christine J. Wichers, Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, and Jennifer A.
Serafyn, Assistant United States Attorney, were on brief, for
appellee.

November 10, 2011
 LYNCH, Chief Judge. This is a case of first impression

for this court as to airport security screeners and the

relationship between the Aviation and Transportation Security Act

(ATSA), Pub. L. No. 107–71, 115 Stat. 597 (2001) (codified in

scattered sections of 49 U.S.C.), and the Rehabilitation Act, 29

U.S.C. § 791 et seq.

Maura Field, administratrix of the estate of her late

husband Martin Field, appeals from the district court's dismissal

of her suit alleging that the Transportation Security

Administration (TSA) discriminated and retaliated against Martin

Field ("Field") on the basis of a disability in violation of the

Rehabilitation Act. TSA determined that Field, who developed a

diabetic ulcer on the bottom of his foot in 2006, was unable to

perform even his adjusted job requirements as a TSA security

screener at Boston's Logan International Airport because he could

not stand for long periods of time and experienced difficulty

walking. After Field missed several months of work, TSA terminated

Field's employment on November 27, 2006, two years after it had

hired him.

Field1 brought suit in federal court in Massachusetts,

alleging discrimination and retaliation under the Rehabilitation

Act, after exhausting administrative remedies. The district court

1
Field died on April 2, 2010, shortly after this suit was
filed. On April 22, 2010, Mrs. Field was appointed administratrix
of Field's estate.

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dismissed both claims because it concluded that the ATSA precludes

a cause of action under the Rehabilitation Act. Field v.

Napolitano, No. 10-10385 (D. Mass. Mar. 3, 2011). We affirm.

I.

The facts, as alleged in the complaint, are as follows.

On November 28, 2004, Mr. Field began working for TSA as

an airport security screener at Logan International Airport in

Boston, Massachusetts. TSA security screeners are primarily

responsible for screening people and property at TSA security

checkpoints in federal airports. Screeners are expected to meet

several conditions of employment, including the ability to walk up

to two miles during a shift and stand for prolonged periods of

time. Screeners are also required to handle, lift, and carry

baggage weighing up to seventy pounds.

Field suffered from diabetes and several related medical

conditions, including recurring diabetic ulcers on the bottom of

his feet. These diabetic ulcers required Field to wear an air cast

and to remain off his feet for extended periods of time.

In April 2006, Field was approved for restricted duty "to

limit the time that he had to stand while he was working" due to a

diabetic ulcer. He "reported to work on most days, but on occasion

called in sick because he was unable to walk due to the diabetic

ulcer on his foot." In June 2006, Field's leg became infected and

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he took approximately six weeks of leave under the Family Medical

Leave Act.

On July 27, 2006, Field faxed a doctor's note to TSA

management official George Barris stating that Field was able to

return to work "with [the] restriction of getting off of his foot

to a sitting position as he feels a need during his shift." Field

alleges that he also called and faxed Barris several times over the

following week, but received no response.

On August 4, 2006, Field reported for work. He was given

certain forms to be completed by his doctor. Field immediately

went to his doctor's office, where his doctor completed and faxed

the forms to TSA Manager Tom Brady. That afternoon, Brady

allegedly informed Field that TSA management "considered Mr. Field

to be too much of a liability to return to work at that time."

Field did not return to work.

From August 4 to October 23, 2006, Field called in sick

nearly every day "so that he would not be terminated for not

showing up for work." In the meantime, Field applied for

unemployment benefits. Field stopped calling in sick on October

24, 2006, the day that he began to receive unemployment benefits.

On October 18, 2006, Barris sent Field a memorandum

stating:

[B]ecause of your extended illness or absence,
which has not been supported, you are
requested to furnish medical evidence which
includes a diagnosis and prognosis by October

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 25, 2006, to cover your absence. . . . If
absence is due to a cause other than your
personal illness, you are required to submit
evidence to justify the reason for your
absence. . . . Should you fail to provide
acceptable evidence for your current absence
by October 25, 2006, . . . your absence will
be charged to absence without official leave
(AWOL), and necessary corrective action, up to
and including removal from the TSA, will be
initiated.

(alterations in original complaint). Field responded to Barris

that he had reported for work with restrictions in August and had

been informed that he would not be allowed to return to work. On

October 26, Brady sent Field a further request for medical

information, stating: "Our records indicate that you continue to

call the sick line and to date we have not received any

documentation which would authorize you to return to full duty

without any restrictions." Field did not respond to this request.

On November 27, 2006, TSA terminated Field's employment,

citing excessive absence without leave and failure to follow

instructions.

After exhausting administrative remedies, Field brought

suit in March 2010, alleging both discrimination on the basis of

his diabetes and retaliation as a result of engaging in protected

EEO activity. The TSA moved to dismiss both claims on the basis

that the Aviation and Transportation Act (ATSA) exempts the TSA

from compliance with the Rehabilitation Act and so provides no

private cause of action to Field for either theory.

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 The district court granted the TSA's motion to dismiss as

to both claims. Field, No. 10-10385, slip op. at 2. As to the

discrimination claim, the district court reasoned that the ATSA

authorizes the TSA to set standards of employment for security

screeners such as Field "[n]otwithstanding any other provision of

law," and that this "notwithstanding" language signals that the

ATSA overrides any conflicting provisions of the Rehabilitation

Act. Id. at 1-2. The district court noted that the Seventh and

Eleventh Circuits have also "held explicitly that the ATSA preempts

the Rehabilitation Act." Id. at 2. Because the plaintiff had no

cause of action under the Rehabilitation Act, the retaliation claim

also failed. Id.

II.

We review de novo the grant of a motion to dismiss under

Rule 12(b)(6), accepting "as true all well-pleaded facts and making

all reasonable inferences in favor of the plaintiff."

Massachusetts v. Sebelius, 638 F.3d 24, 29 (1st Cir. 2011). This

issue is one of pure law, reviewed de novo. See Dickow v. United

States, 654 F.3d 144, 148 (1st Cir. 2011).

A. The Aviation and Transportation Security Act (ATSA)

Congress enacted the ATSA immediately after the terrorist

attacks of September 11, 2001. Congress sought "to improve

aviation security" by effecting "fundamental change in the way [the

United States] approaches the task of ensuring the safety and

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security of the civil air transportation system." H.R. Rep. No.

107–296, at 1, 49 (2001) (Conf. Rep.). To that end, Congress

created a new agency, the TSA, with sweeping responsibility for

airport security screening, including setting the qualifications,

conditions, and standards of employment for airport security

screeners. 49 U.S.C. § 114.

Congress vested the TSA Administrator2 with the authority

to carry out the provisions of the ATSA. Id. § 114(d)-(f).3

Congress placed particular emphasis on the Administrator's singular

"responsib[ility] for day-to-day Federal security screening

operations for passenger air transportation and intrastate air

transportation," directing that "[t]he Under Secretary shall . . .

develop standards for the hiring and retention of security

screening personnel." Id. § 114(e).

2
Although the ATSA refers to the "Under Secretary of
Transportation for Security" as the head of the TSA, the position
has since been given the title "Administrator of the Transportation
Security Administration." 49 C.F.R. § 1500.3. Originally, the
ATSA was placed within the Department of Transportation. See 49
U.S.C. § 114(a). TSA has since been moved to the Department of
Homeland Security. See 6 U.S.C. § 203(2).
3
The ATSA also directs the TSA Administrator, in carrying
out the provisions of the statute, to "work in conjunction with"
other transportation agencies, particularly the Federal Aviation
Administration and the International Civil Aviation Organization.
49 U.S.C. § 114(f)(13)-(14), (g). Further, the ATSA states that
"[i]n taking any action under this section that could affect
safety, the Under Secretary shall give great weight to the timely
views of the National Transportation Safety Board." Id. § 114(i).

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 Congress "recognize[d] that, in order to ensure that

Federal screeners are able to provide the best security possible,

the Secretary must be given wide latitude to determine the terms of

employment of screeners." H.R. Rep. No. 107–296, at 57.

This led Congress to enact a very specific provision,

ATSA § 111(d), which provides:

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 [required
by the Act].

ATSA § 111(d), 115 Stat. at 620 (emphasis added) (49 U.S.C. § 44935

(historical and revision notes)).

Congress regarded screeners as so fundamental to aviation

security that it outlined detailed minimum qualifications for the

job in a provision containing a second "notwithstanding" clause.

Section 44935(e)(2)(A), entitled "Qualifications [for Security

Screeners]," states: "the Under Secretary shall establish

qualification standards for individuals to be hired by the United

States as security screening personnel. Notwithstanding any

provision of law, those standards shall require, at a minimum, an

individual" to meet several specific qualifications. 49 U.S.C.

§ 44935(e)(2)(A) (emphasis added). For example, security screeners

must receive "a satisfactory or better score on a Federal security

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screening personnel selection examination" and must "demonstrate

daily a fitness for duty without any impairment due to illegal

drugs, sleep deprivation, medication, or alcohol." Id.

§ 44935(e)(2)(A)(i), (e)(2)(A)(v).

Most pertinently, the enumerated qualifications include

detailed physical requirements. Section 44935(e)(2)(A)(iii)

provides that security screeners must "meet, at a minimum, the

requirements set forth in [§ 44935](f)." Section 44935(f), in

turn, contains a third "notwithstanding" clause which sets forth

the following physical requirements:

Notwithstanding any provision of law, an
individual may not be deployed as a security
screener unless that individual . . . shall
possess basic aptitudes and physical
abilities, including color perception, visual
and aural acuity, physical coordination, and
motor skills, to the following standards:
. . . .
Screeners performing physical searches or
other related operations shall be able to
efficiently and thoroughly manipulate and
handle such baggage, containers, and other
objects subject to security processing.
. . . .
Screeners who perform pat-downs or hand-held
metal detector searches of individuals shall
have sufficient dexterity and capability to
thoroughly conduct those procedures over an
individual's entire body.

Id. § 44935(f)(1) (emphasis added). This section lists several

additional physical requirements, including the ability to

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distinguish between colors, hear alarm sounds, and respond in

spoken voice. Id.4

Section 44935(e)(2)(A), the "Qualifications" section,

also requires that "at a minimum [a security screener must] meet

such other qualifications as the Under Secretary may establish."

Id. § 44935(e)(2)(A). Using this authority, TSA has established

that all security screeners must be able to handle, lift, and carry

baggage weighing up to seventy pounds. Yeager v. Chertoff, No.

CV06-00740, 2006 WL 4673439, at *1-2 (W.D. Wash. Nov. 13, 2006);

see also TSA Transportation Security Officer Conditions of

Employment, http://www.tsa.gov/join/benefits/soar/tsa/tso_trainee.

shtm (last visited Nov. 8, 2011). TSA has explained that a

security screener who is "medically restricted from lifting or

carrying baggage weighing up to 70 pounds is not qualified to

perform the essential function of performing security screening of

property and baggage at our nation's airports. It would be unsafe

to the person, to the traveling public, and to other employees to

put a person with such a medical restriction in this position."

Declaration of Elizabeth B. Kolmstetter, Deputy Assistant

4
Section 44935(f) also includes several specific non-
physical requirements, such as the ability to "read, speak, and
write English well enough to . . . read English language
identification media, credentials, airline tickets, and
labels . . . ; provide direction to and understand and answer
questions from English-speaking individuals undergoing screening;
and write incident reports and statements and log entries into
security records." 49 U.S.C. § 44935(f)(1)(C).

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Administrator, Office of Human Capital, Transportation Security

Administration, Yeager, 2006 WL 4673439.5

The ATSA also mandates an annual evaluation of each

security screener to ensure continued qualification for the job.

49 U.S.C. § 44935(f)(5). The statute states that "[a]n individual

employed as a security screener may not continue to be employed in

that capacity unless the evaluation demonstrates that the

individual . . . continues to meet all qualifications and standards

required to perform a screening function, . . . [and] demonstrates

the . . . skills necessary to . . . effectively perform [such]

screening functions." Id. § 44935(f)(5).

Finally, the statute provides that the "Under Secretary

shall also review, and revise as necessary, any standard, rule, or

regulation governing the employment of individuals as security

screening personnel." Id. § 44935(e)(3).

B. TSA Exemption from Suit Under the Rehabilitation Act

The question before us is whether the ATSA precludes a

security screener, Field, from bringing suit under the federal

5
The lifting requirements are deemed necessary for all
security screening personnel, including supervisors, because "[t]he
public safety and extraordinary task facing TSA demands that the
entire security screening workforce have the capacity to be
deployed wherever needed at our nation's airports." Declaration of
Elizabeth B. Kolmstetter, Deputy Assistant Administrator, Office of
Human Capital, Transportation Security Administration, Yeager v.
Chertoff, No. CV06-00740, 2006 WL 4673439 (W.D. Wash. Nov. 13,
2006).

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Rehabilitation Act,6 29 U.S.C. § 791 et seq. We conclude that it

does.

The TSA takes the position that the ATSA excludes

security screeners from filing suit in federal court under certain

of the federal employment statutes incorporated under Title 5 of

the United States Code, including the Age Discrimination in

Employment Act, the Fair Labor Standards Act, and the

Rehabilitation Act. While consistently taking the position that

suit cannot be brought under any of these Acts as to security

screeners, the TSA Administrator has, within the TSA itself through

Management Directives, provided certain corollary limited

protections, which include some whistleblower protections and

certain procedures for preventing and responding to sexual

harassment. See TSA Management Directive No. 1100.75-5 (May 21,

2009) ("Whistleblower Protections for Transportation Security

Officers"); TSA Management Directive No. 1100.73-3 (Jan. 6, 2009)

6
The Americans with Disabilities Act (ADA) excludes
"United States" from the definition of employer. See 42 U.S.C.
§ 12111(5)(B) ("The term 'employer' does not include . . . the
United States . . . ."). "Based on this exclusion, federal courts
have concluded that the ADA provides no remedy to federal
employees." Daniels v. Chertoff, No. CV 06-2891, 2007 WL 1140401,
at *2 (D. Ariz. Apr. 17, 2007); see also Enica v. Principi, 544
F.3d 328, 338 n.11 (1st Cir. 2008) ("As a federal employee,
[plaintiff] is covered under the Rehabilitation Act and not the
ADA."); Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 11 n.1
(1st Cir. 2004) (stating that the opinion would concentrate on the
Rehabilitation Act, "since the ADA is not available to federal
employees").

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("Prevention and Elimination of Sexual Harassment in the

Workplace").7

As to the Rehabilitation Act, the TSA Administrator has

issued a Management Directive providing that employees may request

a reasonable accommodation but that employees who fail to meet the

statutory requirements for the security screener position are not

eligible for such accommodations. See TSA Management Directive No.

1100.73-4 (Jan. 25, 2006) ("Reasonable Accommodation Program").

Pursuant to his statutory authority, the TSA Administrator has

declined to fully extend the Rehabilitation Act standards to

security screeners because, inter alia, the Rehabilitation Act

standards are not consistent with the physical qualifications that

the TSA Administrator has established for the screener position.

The plain language of the ATSA supports the TSA position.

"It is well established that, when the statutory language is plain,

we must enforce it according to its terms." Jimenez v. Quarterman,

555 U.S. 113, 118 (2009). The ATSA provides that the TSA

Administrator may establish and enforce employment qualifications

for security screeners "[n]otwithstanding any other provision of

law." 49 U.S.C. § 44935 (historical and revision notes).

"[T]he use of such a 'notwithstanding' clause clearly

signals the drafter's intention that the provisions of the

7
TSA Management Directives are available at
http://www.tsa.gov/research/foia/foia_directives.shtm (last visited
Nov. 8, 2011).

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'notwithstanding' section override conflicting provisions of any

other section." Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18

(1993). As Cisneros observed, "[a] clearer statement is difficult

to imagine." Id. (alteration in original) (quoting Liberty Mar.

Corp. v. United States, 928 F.2d 413, 416 (D.C. Cir. 1991))

(internal quotation marks omitted). The law of this circuit

follows Cisneros. See United States v. Hyde, 497 F.3d 103, 108

(1st Cir. 2007) (citing Cisneros for the holding that the language

"[n]otwithstanding any other Federal law" in the Mandatory Victims

Restitution Act is an "unambiguous" indication that the statute

overrides conflicting provisions in the federal Bankruptcy Code).

Moreover, the ATSA enumerates specific physical

qualifications for screeners, requires that screeners meet any such

other physical qualifications as the TSA Administrator may

establish, and requires the TSA to conduct annual evaluations to

ensure conformity with such qualifications. 49 U.S.C. § 44935(e)-

(f). Thus, under the ATSA, TSA cannot retain as security screeners

individuals who are physically incapable of distinguishing between

colors, hearing alarms, handling up to 70 pounds of baggage, or

conducting a full-body pat-down. See id.

Allowing security screeners to bring suit under the

Rehabilitation Act would be inconsistent with these statutory

mandates in several respects. First, these specific ATSA

requirements as to security screeners and the assignment of

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qualifications to the TSA Administrator displace the broader and

more general standards of the Rehabilitation Act. Compare 49

U.S.C. § 44935(e)-(f), with 29 U.S.C. § 794. Second, these

provisions preclude second-guessing of TSA's decisions as to

implementing the criteria Congress has established and the

discretion as to employment decisions given to TSA. Third, in

combination with the notwithstanding clauses, these provisions

evidence a clear intent to free TSA from the costs and burdens of

litigation in federal court over such decisions.

Every circuit to address the issue has agreed that the

language of the ATSA plainly precludes security screeners from

bringing suit under certain of the federal employment statutes

incorporated under Title 5 of the United States Code, including the

Rehabilitation Act. See, e.g., Joren v. Napolitano, 633 F.3d 1144,

1146 (7th Cir. 2011), reh'g en banc denied, 2011 U.S. App. LEXIS

5254 (7th Cir. Mar. 9, 2011), cert. denied, 2011 WL 4535993 (U.S.

Oct. 3, 2011) ("We now join every other circuit to have considered

the question and conclude that the plain language of the ATSA

preempts application of the Rehabilitation Act to security

screeners."); Castro v. Sec'y of Homeland Sec., 472 F.3d 1334, 1337

(11th Cir. 2006) ("The plain language of the ATSA indicates that

TSA need not take the requirements of the Rehabilitation Act into

account when formulating hiring standards for screeners."); Conyers

v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1383 (Fed. Cir. 2004)

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("Section 111(d) of the ATSA exempts TSA from laws that otherwise

would apply to screener positions."); see also Conyers v. Rossides,

558 F.3d 137, 148 (2d Cir. 2009) (holding that "the [TSA]

Administrator's decision not to utilize the [Federal Aviation

Administration]'s personnel management system in deciding whom to

'employ' or 'appoint' as a security screener, 'is committed to

agency discretion' by ATSA Section 111(d) and, thus, is not

reviewable under the [Administrative Procedure Act]") (quoting 5

U.S.C. § 701(a)).

Despite the unequivocally plain language of the ATSA,

plaintiff argues that Congress could not have intended to deny

security screeners the ability to sue under the Rehabilitation Act.

To the contrary, not only is the reason for the ATSA's preclusion

of suit under the Rehabilitation Act self-evident, but the

Congressional history makes clear the intent to do so.

The original version of the proposed ATSA made the

provisions of Title 5 of the United States Code, including the

Rehabilitation Act, applicable to all screeners hired.8 Conyers,

8
The original proposed language read: "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 limitation on number of
employees imposed by any other law or Executive Order." S. 1447,
107th Cong. § 10 (as placed on Senate Calendar Sept. 24, 2001).
The Rehabilitation Act is incorporated under part III of title 5 of
the United States Code. See 5 U.S.C. § 2302(b)(1)(D), (d)(4).

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558 F.3d at 140. However, before enacting the ATSA, Congress

rejected that concept and replaced the original language with the

statute's current language in § 111(d) in order "[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 to such employees." 147

Cong. Rec. S10,520 (daily ed. Oct. 11, 2001) (voice vote passing

amendment 1881).

Several members of Congress expressed their understanding

that § 111(d) gave the TSA Administrator "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." 147 Cong. Rec. H8313 (daily ed. Nov. 16,

2001) (statement of Rep. Schakowsky); see also 147 Cong. Rec.

S11,982 (daily ed. Nov. 16, 2001) (statement of Sen. Rockefeller)

(expressing the understanding that under the ATSA "health care,

worker's compensation, and civil rights and whistleblower

protection . . . are left to the discretion of the" TSA

Administrator).

Plaintiff's fallback argument is that the ATSA exempts

the TSA from suit under the Rehabilitation Act only insofar as the

ATSA enumerates minimum physical and intellectual requirements in

§ 44935(f). Plaintiff proposes we adopt the view, expressed in

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several EEOC appellate decisions, that TSA's exemption from "the

Rehabilitation Act must be determined on a case-by-case basis, in

light of the specific allegations made, and will depend on whether

there is any conflict between the ATSA-mandated qualifications and

the complainant's Rehabilitation Act claim." Chapman v. Chertoff,

EEOC Appeal No. 01200510491, 2008 EEOPUB LEXIS 2746, at *7 (Aug. 6,

2008); see Kimble v. Napolitano, EEOC Appeal No. 0120072195, 2009

EEOPUB LEXIS 3302, at *2 (Nov. 24, 2009); Getzlow v. Chertoff, EEOC

Appeal No. 0120053286, 2007 EEOPUB LEXIS 2508, at *8-9 (June 26,

2007).

We reject this argument. Congress gave the EEOC no role

to play in interpreting the ATSA.9 Instead, Congress vested

primary authority for interpreting the ATSA in the TSA

Administrator, 49 U.S.C. § 114(d)-(f), granting the Administrator

broad flexibility to develop employment standards beyond those

articulated in the statute, id. § 44935(e)(2)(A).

Nor does the EEOC have any particular expertise in

airport security needs. See Metzger, Federalism and Federal Agency

Reform, 111 Colum. L. Rev. 1, 26 (2011) (describing the Supreme

Court's growing wariness of agency interpretations that are "not

9
Indeed, the EEOC has no regulations which purport to
interpret the ATSA.
By contrast, Congress did direct the TSA to "work in
conjunction with" the Federal Aviation Administration and
International Civil Aviation Organization, and to "give great
weight" to the views of the National Transportation Safety Board.
See 49 U.S.C. § 114(f)(13)-(14), (i).

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grounded in agency expertise and therefore [do] not merit

deference"). Additionally, the EEOC interpretation is contrary to

the statute in that it requires engaging in a case-by-case analysis

of whether TSA's decisions are correct under the Rehabilitation

Act. Congress did not intend such a result.

Plaintiff further argues that because TSA has voluntarily

established through its Management Directive a limited version of

reasonable accommodation, it has permanently waived its exemption

from suit under the Rehabilitation Act. Again, not so. The TSA

Management Directive establishing a limited reasonable

accommodation program does so pursuant to Executive Order 13,164,

which directs federal agencies to adopt reasonable accommodation

procedures. See TSA Management Directive No. 1100.73-4 (Jan. 25,

2006) ("Reasonable Accommodation Program"). Significantly, by its

terms, Executive Order 13,164 makes clear that the adoption of such

procedures "does not create any right or benefit, substantive or

procedural, enforceable at law or equity by a party against the

United States, its agencies, its officers, its employees, or any

person." Exec. Order No. 13,164, 65 Fed. Reg. 46,565 (July 26,

2000).

In enacting the ATSA, Congress sought not only to give

the Administrator "wide latitude to determine the terms of

employment of screeners," but also the flexibility to change those

terms as necessary to ensure aviation safety. H.R. Rep. No.

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107–296, at 64. Thus, the statute provides that the "Under

Secretary shall also review, and revise as necessary, any standard,

rule, or regulation governing the employment of individuals as

security screening personnel." 49 U.S.C. § 44935(e)(3). The

ATSA's mandate to set and revise terms of employment means that the

Administrator's Management Directives cannot constitute waiver of

ATSA § 111(d).10

III.

The language of the ATSA makes clear that Field has no

cause of action under the Rehabilitation Act. Should there be

abuses in the treatment of screening personnel by the TSA (and we

certainly do not suggest that there was any such abuse here),

Congress will, no doubt, take note. The order of the district

court is affirmed. Costs are awarded to TSA.

10
By parallel reasoning, we would agree with Wong v.
Regents of the University of California, 192 F.3d 807 (9th Cir.
1999), that "[a]n an institution's past decision to make a
concession to a disabled individual does not obligate it to
continue to grant that accommodation in the future." Id. at 820;
cf. Goncalves v. Plymouth Cnty. Sheriff's Dep't, 2011 WL 4715199,
at *4 (1st Cir. 2011) (stating that a decision to let an employee
advance to the next stage of the hiring process does not constitute
an admission that the employee is qualified).

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