[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-16682 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ December 22, 2006
THOMAS K. KAHN
D.C. Docket No. 04-60917 CV-WPD CLERK
RAFAEL CASTRO,
Plaintiff-Appellant,
versus
SECRETARY OF HOMELAND SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 22, 2006)
Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.
PER CURIAM:
In this appeal, we consider whether the Plaintiff, a disabled applicant for a
transportation security screening position can sue the Department of Homeland
Security (DHS) for violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791,
794. We conclude that he cannot because the Aviation and Transportation
Security Act, 49 U.S.C. § 44935, (ATSA) exempts the Transportation Security
Administration from certain requirements of the Rehabilitation Act with regard to
employment of security screeners.
I. BACKGROUND
In August 2002, Rafael Castro applied for employment with the
Transportation Security Administration (TSA) as a Lead Transportation Security
Screener. TSA declined to hire Castro because he failed the required medical
assessment. Castro has a history of physiologic non-epileptic seizures that TSA’s
staff physician determined disqualified him for employment as a security screener.
Castro responded by suing the DHS, the department responsible for TSA, for
violation of the Rehabilitation Act, alleging that TSA had discriminated against
him on the basis of his disability.
DHS moved to dismiss Castro’s action pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
DHS argued that Castro could not bring a claim against DHS pursuant to the
Rehabilitation Act because, following the terrorist attacks of September 11, 2001,
Congress passed the ATSA, which mandated that qualification standards for
transportation security screeners be established by TSA, notwithstanding any other
2
provision of law. Therefore, DHS argued, TSA was not bound by the
requirements of the Rehabilitation Act in its employment of security screeners.
DHS also argued that Castro’s action must be dismissed because Castro had failed
to exhaust all administrative remedies before filing suit.
The district court granted DHS’s motion, holding that “Congress has
exempted the job qualifications utilized by [TSA] from review under the
Rehabilitation Act[.]” (R.1-21 at 2.) Because it dismissed Castro’s action on that
ground, the district court found it unnecessary to address DHS’s argument that
Castro had not exhausted all administrative remedies.
II. ISSUE ON APPEAL & CONTENTIONS OF THE PARTIES
Castro appeals the dismissal, arguing that the ATSA should not be read to
relieve DHS of any of its obligations under the Rehabilitation Act, as the two
statutes are not in irreconcilable conflict. Alternatively, Castro contends that, if
the ATSA exempts DHS/TSA from compliance with the Rehabilitation Act at all,
that exemption is only applicable as to the establishment of hiring criteria for
security screeners and that his action does not challenge those hiring criteria.
Thus, he contends that dismissal of his action was improper.
DHS argues that, by using the language “notwithstanding any provision of
law” in the ATSA, Congress set aside the requirements of the Rehabilitation Act
3
in authorizing TSA to establish and apply physical performance standards for the
hiring of security screeners. DHS also argues that, because the Rehabilitation Act
does not extend to cases like Castro’s, where an applicant for a security screening
position is denied employment on the basis of TSA’s hiring standards, the district
court properly dismissed Castro’s lawsuit.
III. STANDARD OF REVIEW
“We review de novo the district court’s grant of a motion to dismiss under
[Rule] 12(b)(6) for failure to state a claim, accepting the allegations in the
complaint as true and construing them in the light most favorable to the plaintiff.”
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). “A motion to dismiss is
granted only when the movant demonstrates ‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’”
Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.
2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957))
(other citations omitted).
IV. DISCUSSION
Castro’s complaint alleges that DHS violated sections 791 and 794 of the
Rehabilitation Act. Those sections require federal agencies to implement
affirmative action plans for the hiring of individuals with disabilities and forbid
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agencies from refusing to hire otherwise qualified applicants solely because of
their disabilities. See 29 U.S.C. §§ 791(b), 794(a). The parties agree that, unless
the ATSA provides an exception for TSA’s hiring of security screeners, the
Rehabilitation Act forbids TSA from refusing to hire Castro based upon his
history of seizures alone.
Following the terrorist attacks of September 11, 2001, Congress passed the
ATSA to affect “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. Conf. Rep. No. 107-296 at 53. One of the changes made was the creation of
a workforce of federal employees to screen passengers and cargo at commercial
airports. With regard to hiring qualifications of security screeners, the ATSA
states:
[T]he 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–
....
(iii) to meet, at a minimum, the requirements
set forth in subsection (f);
(iv) to meet such other qualifications as the
Under Secretary may establish; and
(v) to have the ability to demonstrate daily a
fitness for duty without any impairment due
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to illegal drugs, sleep deprivation,
medication, or alcohol.
49 U.S.C. § 44935(e)(2)(A). Subsection (f) referenced above requires that
screeners have a high school diploma, an equivalency diploma, or experience
sufficient to perform screener duties; that screeners “possess basic aptitudes and
physical abilities, including color perception, visual and aural acuity, physical
coordination, and motor skills” as specified in the subsection; and that screeners
be able to read, speak, and write English. 49 U.S.C. § 44935(f). Public Law 107-
71, Title I, § 111(d), 115 Stat. 620, codified as a note to 49 U.S.C. § 44935, states:
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 . . . individuals . . . to carry out the screening
functions
....
Thus, the question before us is whether the district court properly held that
the language of the ATSA exempts TSA from compliance with the Rehabilitation
Act in establishing employment standards for security screeners. We conclude
that it did.
The plain language of the ATSA indicates that TSA need not take the
requirements of the Rehabilitation Act into account when formulating hiring
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standards for screeners. Congress directed TSA to establish hiring criteria
(including physical standards at least as strenuous as those in subsection (f)) for
security screeners“[n]otwithstanding any provision of law.” 49 U.S.C. §
44935(e)(2)(iii), (iv). And it stated that TSA has authority, “[n]otwithstanding any
other provision of law,” to “employ, appoint, . . . and fix the . . . terms, and
conditions of employment” for security screeners. 49 U.S.C. §44935 note.
We read the phrase “notwithstanding any other provision of law” as
Congress’s indication that the statute containing that language is “intended . . . to
take precedence over any preexisting or subsequently-enacted . . . legislation [on
the same subject].” United States v. McLymont, 45 F.3d 400, 401 (11th Cir.
1995); see also Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S. Ct. 1898,
1903 (1993) (commenting favorably upon interpretations by Courts of Appeals of
similar “notwithstanding” language “to supersede all other laws” and quoting, “a
clearer statement is difficult to imagine.”) (citations omitted). Thus, the
“notwithstanding” language of section 44935(e) and the note to the statute indicate
that TSA shall implement hiring standards and conditions of employment
(including physical standards) for screening personnel, whether or not those
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standards and conditions of employment are consistent with the Rehabilitation
Act.1
While we find the plain language of the statute sufficient to reach our
conclusion, we also note that subsection (f) of the ATSA explicitly requires TSA
to promulgate hiring standards that are inconsistent with the Rehabilitation Act’s
prohibition against making hiring decisions based on physical disabilities. See 49
U.S.C. § 44935(f). That section lists physical abilities that must be incorporated
into TSA’s hiring criteria for security screeners. The existence of subsection (f)’s
requirements supports our conclusion that Congress intended to exempt TSA from
the contrary requirements of the Rehabilitation Act with respect to its hiring of
security screeners.
Castro also argues that, even if the ATSA allows TSA to promulgate hiring
standards for security screeners that do not comply with the Rehabilitation Act, his
action was erroneously dismissed because he does not challenge those hiring
standards. We see no merit in this argument. Castro’s lawsuit seeks to hold TSA
responsible for violating the Rehabilitation Act by refusing him employment on
the basis of his physical disability. Because Castro was denied employment as a
1
We need not decide in this case whether the TSA must comply with other federal statutes
that involve the agency’s employment decisions. Castro’s complaint implicates only those
provisions of the Rehabilitation Act cited in this opinion.
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result of a TSA determination that he was ineligible for employment as a security
screener due to his disability, Castro’s suit challenges TSA’s authority to
promulgate and implement hiring standards inconsistent with the Rehabilitation
Act.
We hold that, in the ATSA, Congress instructed TSA to develop hiring
standards for security screeners, without regard to restraints the Rehabilitation Act
may have imposed.2 Thus, an unsuccessful applicant (like Castro) who alleges
that TSA discriminated against him on the basis of disability when it denied his
application for employment as a security screener cannot state a claim against TSA
based on violation of the Rehabilitation Act.3 Castro’s action was properly
dismissed for failure to state a claim upon which relief can be granted.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
2
The Court of Appeals for the District of Columbia has reached a similar conclusion in
finding, “[T]he ‘[n]otwithstanding any other provision of law’ language renders inapplicable general
federal statutes that otherwise would apply to the Under Secretary’s power to ‘employ, appoint,
discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal
service’ for screener positions.” Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1382 (D.C. Cir.
2004) (citing 49 U.S.C. § 44935 note).
3
Castro contends that the ATSA cannot be read to repeal the Rehabilitation Act broadly. He
may or may not be correct in this assertion, but that question is not before us. DHS does not argue
for broad repeal of the Rehabilitation Act, and Castro’s lawsuit implicates only those portions of the
ATSA and Rehabilitation Act cited above. Therefore, we need not decide the broader question.
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