/-.~
\~.1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

fiLED

AUG 13 2003

NANCYMu.AsY. EflRISWTRHlCmTINCGOTUO!INT.

CLfftK "

AMERICAN FEDERATION OF

)

GOVERNMENT EMPLOYEES TSA LOCAL 1 )

80 F Street, N.w.

)

Washington, D.C. 2000.1, and

)

)

EUGENE LEIMER

)

1277 Tyler Road

)

Bridgeport, NY 13030,

and

)

"DON CARD

135 Longdale Dr.

Liverpool, N.Y. 13090,

and

) ) )
\
CASE NUMBER

1: 03CVOl719

BEATRICE CAMPBELL 2735 Burning Tree Lane

JUDGE: Colleen Kollar-Kotelly

Suffolk, VA 23435,

and

DECK TYPE: TRO/Preliminary Injunction

THOMAS MORIARTY 2248 Mansion Cross Lane Virginia Beach, VA 23456, and
JONATHAN THORTON 808 Allegheny River Blvd. Oakmont, PA 15139-1401,
" Plaintiffs,
v.
JAMES M. LOY, in his official capacity as Administrator, Transportation Security Administration U.S. Department of Homeland Security 400 7TH Street, S.W. Washington, D.C. 20590,
Defendant.

DATE STAMP: 08113/2003
) ) ) ) ) ) ) ) ) CIVIL ACTION NO. _ _ _ _ __ ) ) ) ) ) ) ) ) ) )

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Plaintiffs bring this action to challenge the reduction in force in violation of the Aviation and Transportation Security Act (ATSA) by Defendant James M. Loy, Administrator, Transportation Security Administration (TSA), U.S. Department of Homeland Security (DHS). In May 2003, Defendant annotmced that it would reduce its security screener workforce by approximately 6,000 employees. The reduction in force (RIF) would take place in two stages, the fIrst by Jtme and the second by September 2003. Defendant based the decision of whom to RIF on impermissible, arbitrary and capricious standards. Specifically, Defendant's standards (1) place tmdue emphasis on disciplinary actions, (2) do not consider veterans' preference, (3) do not preserve permanent before temporary employees, (4) do not consider length of federal service, (5) do not distinguish between job classifications, and (5) do not create restoration rights. Furthermore, Defendant targeted union activists and employees over the age of 40 years old.
Plaintiffs seek this Court to declare the RIF standards used by the Defendant a violation of the ATSA and impermissible, arbitrary and capricious pursuant to the Administrative Procedure Act
CAPA). Plaintiffs further seek this Court to declare the RIF standards used by the Defendant a
violation of the I" Amendment of the U.S. Constitution, 5th Amendment ofthe U.S. Constitution, Veterans' Preference Act of 1944, and the Age Discrimination in Employment Act (ADEA). Plaintiffs request an order requiring the Defendant to create a RIF procedure with lawfully required safeguards, including but not limited to veterans' preference, retention registers, and restoration rights. Plaintiffs reqnest an order requiring TSA to create retention registers based on their pre-RIP workforce. Plaintiffs further ask the Court to order the Defendant to restore employees who were inappropriately RIFed, including but not limited to the Plaintiffs.
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JURISDICTION 1. Jurisdiction over this action is conferred upon the United States District Court by 28 U.S.C.
§1331. Plaintiffs also seek a declaratory judgment under 28 U.S.C. §2201 and further relief under 28 U.S.C. §2202.
VEl'fUE 2. Venue is properly laid before this Court in accordance with 28 U.S.C. §1391(e).
PARTIES 3. Plaintiff American Federation of Government Employees TSA Local I, AFL-Cro (TSA Local
1) is a labor organization chartered by the American Federation of Government Employees, AFL-CIO (AFGE). AFGE represents approximately 600,000 federal government employees throughout numerous federal goverument departments and agencies. Its headquarters is located at 80 F Street, N.W., Washington, D.C. 20001. AFGE represents the interests of employees within its bargaining units by, among other things, negotiating collective bargaining agreements, arbitrating grievances, filing unfair labor practices, lobbying, and litigating employees' collective and individual rights in the federal courts. On March 3, 2003, AFGE chartered TSA Local 1 for TSA security screeners. Thirteen TSA security screeners from various U.S. aiIports are the founding members of AFGE TSA Local 1. Since its founding, more than 500 security screeners throughout the country have joined. 4. Plaintiff Eugene Leimer was employed as an airport security screener with the TSA at the Syracuse Hancock International AiIport beginning October 20, 2002. He was a probationary,
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pennanent (non-temporary) employee. On or about May 23,2003, he was laid off as part oftbe RlF. His letter of separation stated tbat his "separation is due to overstaffing resulting from budget allocations and is not for cause." [Emphasis in original]. Plaintiff Leimer was born on September 10, 1944. He is a veteran oftbe United States Navy. He served from 1963 to 1967 when he was honorably discharged witb a 50% service connected disability. During his service, during the Vietnam War, he was deployed on a submarine and was also a SEABEE (Construction Battalion). Wbile employed by TSA, Plaintiff Leimer was an AFGE activist. Plaintiff Leimer was proud of his union activity and on or about January 12, 2003, wrote a letter to Federal Security Director (FSD) Milano in defense of unions and unionism. 5. PlaintiffDon Card was employed as an airport security screener witb the TSA at tbe Syracuse Hancock International Airport beginning September 9, 2002. He was a probationary, pennanent (non-temporary) employee. On or about May 30, 2003, he was laid off as part oftbe RlF. His letter· of separation stated that his "separation is due to overstaffing resulting from budget allocations and is not fur cause." [Emphasis in original]. Plaintiff Card was born on May 20, 1943. He is a veteran oftbe U.S. Anuy. He served from April 22, 1965 - Apri122, 1967, during tbe Vietnam War. He received an honorable discharge. Wbile employed by TSA, Plaintiff Card was an AFGE activist. Management knew ofhis union activities and he was disciplined by TSA for lawfully discussing tbe union while off duty at the airport's break room. 6. PlaintiffBeatrice Campbell was employed as an airport security screener with tbe TSA at the Norfolk International Airport beginning September 29, 2002. She was a probationary, pennanent (non-temporary) employee. On Of about May 30, 2003, she was laid off as part oftbe RlF. Her letter of separation stated tbat her separation was not for cause. Plaintiff Campbell was born on February 28, 1946. She was not employed by tbe federal government or military before
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her employment with TSA. 7. Plaintiff Thomas Moriarty was a screenillg supervisor at Norfolk International Airport beginning
March 24,2002. He was a non-probationary, permanent (non-temporary) employee. On May 30, 2003, he was laid off as part of the RIP. His letter of separation states that he is being separated "due to overstaffmg resulting from budget allocations and is not for cause." Plaintiff . Moriarty was born on October 2, 1954. Before his employment at TSA, he had 24 years of creditable service with the U.S. Navy. He was honorably discharged from the Navy and has a service related disability of at least 30%. Plaintiff Moriarty was an AFGE activist while employed with TSA. Management knew of his activism as they maintained a list of union supporters and upon information and belief, he was on that list.
8. Plaintiff Jonathan Thorton was employed as an airport security screener with the TSA at the
Greater Pittsburgh International Airport beginning August 18,2002. He was a probationary, permanent (rton-temporary) employee. On or about May 23, 2003, he was laid off as part ofthe RIP. Her letter of separation stated that his separation was not for cause. PlaintiffThorton is not over 40 years of age. He is a veteran of the U.S. Army. He served for 14 years and was honorably discharged. Plaintiff Thorton was an AFGE activist and a member of AFGE's TSA Local!. 9. Defendant James M. Loy is the Administrator of the Transportation Security Administration (TSA). He is being sued in his official capacity.
CLASS ALLEGATIONS
10. This action is brought and may be properly maintained as a class action pursuant to Fed. R. Civ. -5-
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P. 23 and Local Rule 23.1. Plaintiffs seek certification of the following class: (a) TSA Security Screeners who were laid off as part of the RIP, i.e. without cause due to budget constraints; and (b) TSA Security Screeners who are currently employed but subject to layoff due to the upcoming RIF. II. The exact number of Plaintiff class members is currently unknown, however, Plaintiffs believe that the class is so numerous that joinder of all members would be impracticable. Plaintiffs estimate that Class A is approximately 2,000 employees. This estimate is based on the TSA news releases from April and May 2003 that stated 6,000 employees were to be reduced, approximately halfby the end ofMay 2003 and the rest by September 2003. However, TSA was first going to terminate for cause and only then RIP. Later TSA news releases stated that more than 1,000 TSA security screeners were terminated for cause based on the findings of delayed suitability and background checks. Plaintiffs estimate that Class B is approximately 48,000 employees, the current number of employees. 12. Questions of fact and law are common with respect to each class member. Common questions inclnde: a. Whether Defendant violated ATSA when it failed to follow FAA RIP procedure; b. Whether Defendant violated ATSA, the Veterans' Preference Act of 1944, as amended, when
it failed to preserve veterans' preference; c. Whether Defendant violated the Administrative Procedure Act (APA) by failing to properly
establish RIP procedures; d. Whether Defendant violated the Age Discrimination in Employment Act (ADEA) when it
disparately impacted employees over the age of 40 years; e. Whether the Defendant violated the I" Amendment of the U.S. Constitution when it targeted
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union activists for the RlF; f. Whether Defendant violated the 5"' Amendment of the U.S. Constitution when it abrogated
its employees' liberty interests; and g. Whether, as a result of Defendant's arbitrary and capricious RlF standard, Plaintiffs are
entitled to restoration and/or to be maintained in their positions until a lawful RlF procedure is implemented. 13. The claims of the individually named Plaintiffs are typical of the claims of the Plaintiff class members. Plaintiffs and all members ofthe Plaintiff Class have been similarly affected by the Defendant's common course of conduct. The claims of all class members depend on a showing of Defendant's common implementation of an arbitrary and capricious RlF standard. When the RlF standard is determined to be unlawful, Plaintiffs, individually and as a class, will have the right to the relief sought herein. 14. There is no conflict as between Plaintiffs and the other members of the class with respect to this action Of the claims for relief. Plaintiffs know and lUlderstand their asserted rights and their roles as class representatives. 15. Plaintiffs and their attorneys are able to and will fairly, and adequately, protect the interest of the class. Attomey Mark D. Roth and Charles A. Hobbie are experienced litigators and will be able to supervise other experienced staffin conducting the proposed litigation. Plaintiffs' attomeys can vigorously prosecute the rights of the proposed class members. 16. Separate actions by individual Plaintiffs will create the risk of inconsistent and varying results that may establish incompatible standards.
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FACTS 17. In 2001, Congress enacted the Aviation and Transportation Security Act, Pub. L. 107-71, in
part, in order to federalize security screening operations for passenger air transportation and iutrastate air transportation under 49 U.S.c. §§44901 and 44935. The ATSA created the TSA and as such, defines that agency's duties and authorities. 18. The ATSA explicitly mandates the recognition of veteran's preferences as part of the employment standards for screening persounel and in particular for hiring. Pub.L. 107-71, §1ll(2)(f)(2). 19. The ATSA explicitly mandates that within a year, the Defendant shall deploy "a sufficient number of Federal screeners" to conduct the screening of all passengers. Pub.L. 107-71, §110(c)(1). 20. The ATSA explicitly mandates that the Federal Aviation Administration's (FAA) personnel management system as defined in 49 U.S.C. §40122 shall apply to employees of the TSA. Pub.L. 107-71, §101(n). 21. The FAA system, set forth in 49 U.S.C. §40l22, in turn, provides the FAA with the general right to create "a persomlel management system for the Administration that addresses the unique demands on the agency's workforce." §40122(g)(I). 22. Pursuant to §40l22(g)(I), FAA expressly incorporates the provisions ofTitle 5 relating to sections 3308-3320 for veterans' preference. 23. Pursuant to §40l22(g)(l), FAA also promUlgated RJF policies found at FAA Order 3350.2C (10/17/94) and must be read in conjunction with later FAA amendments pertaining to appeal rights (FAA PMS, PRIB#17), performance appraisals (PRIB #16), agency status as a whole, and career transition assistance (HRPM EMP-l.22 and EMP 1.9).
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24. Order 3350.2C includes as part of its RIF procedures the requirement of retention registers,
veteran's preference, preference for permanent as oppose to temporary employees,
consideration for length of federal service, and re-employment rights.
25. The FAARIF procedures are consistent with the Veterans' Preference Act ofl944.
2u. On March 28, 2003, Defendant Loy wrote to TSA screeners and informed them that there
would be a reduction in force of up to 3,000 security screeners.
27. On or about April 30, 2003, Defendant Loy annouuced that up to 6,000 security screeners
would be reduced in force by September 30, 2003.
28. In a May 30, 2003 press release, Defendant Loy explained that TSA was basing its selection
of whom to reduce in force onjob performance. Specifically, the May 30,2003 press release
that stated in relevant part
Whenever possible, normal attrition, including resignations and retirements, is being used for rightsizing at individual airports. Employees may be terminated for cause, including criminal backgrouud, failure to pass drug and alcohol tests, and falsification of employment documents. Beyond that, the actual reductions in force are based opjob performance.
Qualified screeners at airports with too large a work force may seek transfers to airports needing screeners. A partial relocation stipend is available for screeners who transfer to certain airports. Screeners also have the opportunity to transfer from working full-time to working part-time, and TSA will soon start making such transfers.
29. In May, TSA began laying off security screeners as part ofthis RIF.
30. Plaintiffs were all separated in May 2003. Their separation letters stated that separation was
as a result of overstaffing resulting from budget allocations and "not for cause."
31. Plaintiffs Leimer, Card, Moriarty, and Thornton were all eligible for veterans' preference.
32. Plaintiffs Leimer, Card, Campbell, and Moriarty are all over the age of 40 years.
33. All Plaintiffs were uuion activists. -9-

34. On or about June 6, 2003, after the RIP had already begun at various airports, TSA recalculated the number of screeners needed at each airport.
35. On or about June 13, 2003, in a memorandum to TSA Screeners from Richard Whitford, Assistant Administrator of Human Resources and James Scheal', Deputy Assistant Administrator of Airport Operations, the screeners were assured that screeners reduced in force - both past and futnre - would be "given priority consideration for screener positions if vacancies open up again in their airport." The same memorandum further explained that all airports would be given a "Conduct Checklist" and all screeners will be required to complete a competency-based assessment for determination of who will be RIPed in the second round ofRIF.
36. On or about July 3,2003, Assistant Federal Security Director (AFSD) Liddel from Hancock International Airport annOlmced that the airport needed to hire additional security screeners. In response to the question whether those security screeners already laid offby the RIF would be restored, AFSD Liddel stated "no way" and cautioned the security screeners "do not make waves."
37. On July 11 and 18, 2003, Defendant issued a press release that it was recruiting new screeners for hiring at various airports throughout the country.
COUNT I
38. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 37 above.
39. The TSA RIF standard violates ATSA as it does not follow FAA RIP procedures and (1) - 10-

places undue emphasis on de minimis memoranda of counseling and/or disciplinary actions, (2) does not preserve permanent before temporary employees, (3) does not distinguish between positions (4) does not consider length offederal service, (5) does not preserve veterans' preference and (6) does not create restoration rights.
COUNT II 40. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through
39 above. 41. The RIP procedure violates ATSA and the Veterans' Preference Act of 1944, Pub.L.No. 359,
chp. 287, §12, 58 Stat. 390 as codified in 5 U.S.C.A. §3501 et seq. , in that it does not give due effect to tenure of employment, military preference, length of service, and efficiency ratings.
COUNT III 42. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through
41 above. 43. The TSA RIP "standard" is arbitrary and capricious agency action in violation of the APA, 5
U.S.C. §706. COUNT IV
44. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 43 above.
45. Plaintiff Leimer exhausted administratively. Specifically, pursuant to 29 CFR 1614.105, on or about June 11,2003 PlaintiffLeimer timely requested informal counseling for his allegations of age discrimination. On or about July 17,2003, pursuant to 29 CFR 1614.201(a), Plaintiff Leimer gave the Commission notice of intent to file suit.
46. The RlF procedure violates the Age Discrimination in Employment Act (ADEA), 29 USCA - 11 -

§ 621 et seq., in that it disparately impacts employees over 40 years old. COUNT V
47. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1 through 46 above.
48. Defendant violated ATSA in that it did not deploy within the year requirement "a sufficient number of Federal screeners" to conduct the screening of all passengers.
COUNT VI 49. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1
through 48 above. 50. The RIF standard as applied disparately impacted on union activists and as such abrogates
Plaintiffs' right offree association under the First Amendment of the U.S. Constitution. 51. There are no comprehensive administrative procedures available which could provide a
meaningful remedy Defendant's violation of Plaintiffs' First Amendment right of free speech.
COUNT VII 52. Plaintiffs reallege and incorporate by reference the allegations contained in paragraphs 1
through 51 above. 53. Although the termination letters to those employees RIFed read that they are not due to
cause, the Defendant has advertised through its press releases it selected employees for the RIF based on prior disciplinary incidents or for poor job performance. 54. The RIF standard as applied abrogates Plaintiffs' due process and liberty interests under the Fifth Amendment ofthe U.S. Constitution. 55. There are no comprehensive administrative procedures available which could provide a
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meaningful remedy Defendant's violation ofPlaintiffs' Fifth Amendment rights.
WHEREFORE, Plaintiffs pray that this Honorable Court enter an Order: (1) Declaring that Defendant violated ATSA when it implemented RlF standards that (l) place undue emphasis on disciplinary actions, (2) do not consider veterans' preference, (3) do not preserve permanent before temporary employees, (4) do not consider length of federal service, (5) do not distinguish between positions, and (6) do not create restoration rights; (2) Declaring that Defendant violated the Veterans' Preference Act of 1944, as amended; (3) Declaring that the RlF standard is impermissible, arbitrary and capricious; (4) Declaring that Defendant violated the ADEA; (5) Declaring that Defendant abrogated Plaintiffs' right of free association under the First Amendment as it applied the RlF standard; (6) Declaring that Defendant abrogated Plaintiffs' Fifth Amendment rights as it applied the RlF standard; (7) Declaring that Defendant violated ATSA when it did not deploy the correct number of screeners within the year as required; (8) Ordering Defendant to create a RlF procedure that is consistent with ATSA and the FAA RlF procedure; (a) Ordering Defendant to create a retention register based on the pre-RlF employment logs which (1) does not place undue emphasis on disciplinary actions, (2) considers veterans' preference, (3) preserves permanent before temporary employees, (4) considers length offederal service, and (5) distinguishes between positions, i.e., - 13-
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passenger screeners, baggage screeners, lead screeners, and supervisory screeners; (b) Ordering Defendant to create a RlF procedure with restoration rights; (9) Restore Plaintiffs' employment with backpay, benefits and interest; (10) Restore TSA employees inappropriately RIFed as a result ofDefedant's failure to have appropriate retention registers; (11) Enjoin Defendant from future RlF without proper and lawful RIF procedures; (12) Ordering Defendant to pay Plaintiffs' attorney fees and costs; and (13) Granting such other relief as this COlUi finds necessary and proper.
Respectfully submitted,
7ttdz j ;Uttt
Mark D. Roth (D.C. Bar #235473) General Counsel
C·jf· H~)
Charles A Hobbie Deputy General Counsel
/
GonjJFrieder .C. Bar #457706) Staff~~Unsel- TSA Local 1
Ameri~'Federation of Government Employees,
AFL-CtO 80 F Street, NW Wasmngton, D.C. 20001 (202) 639-6434 Attorneys for Plaintiffs
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 481 F.Supp.2d 72 (2006)
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.
734 *73 *74 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 Hawley[1] in his 75 capacity as Administrator[2] of the Transportation Security *75 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 0907 76 ATSA 101), *76 ¶¶ 40-41 (Count II 0907 VPA), ¶¶ 42-43 (Count III 0907 APA), ¶¶ 44-46 (Count IV 0907 ADEA), ¶¶ 47-48 (Count V 0907 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. 0907 Notwithstanding any other provision of law, the Under Secretary of

77

Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation,

*77 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. 0907 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. 0907 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. 0907
(1) Authorization of employment. 0907 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 Order.
(2) Strikes prohibited. 0907 An individual employed as a security screener is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5.
In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). The provision was further amended by Senate Amendment 1881 on October 11, 2001. The purpose of Senate Amendment 1881 was "[t]o authorize the employment, suspension, and termination of airport passenger security screeners without regard to the provision of title 5, United States Code, otherwise applicable to such employees." In re TSA and AFGE, No. 78 WARP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S10520 (Oct. *78 11, 2001)). Senate Amendment 1881 replaced the above subsections With:
(d) Screener personnel. 0907 Notwithstanding any other provision of law, the Secretary of Transportation may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of such a number of individuals as the Secretary determines to be necessary to carry out the passenger security screening functions of the Secretary under section 44901 of title 49, United States Code.
(e) Strikes prohibited. 0907 An individual employed as a security screener under section 44901 of title 49, United States Code, is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5, United States Code.
In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003). No other changes of significance to this case were made to this provision in S. 1447 that differentiate it from the final version appearing in Pub.L. 107-71, cited above.

ATSA § 101, meanwhile, came originally from House bill H.R. 3150, introduced on October 17, 2001. Section 101 provides that the personnel management system of the FAA apply to TSA employees. The FAA personnel management system is more "flexible" than that applicable to most federal employees, in that only enumerated employee protections of federal personnel laws apply, including whistle-blower protection, veterans' preference, non-discrimination, insurance, and appeals to the Merit Systems Protection Board. See 49 U.S.C. § 40122(g). Importantly, unlike the bill passed by the Senate, the House bill contemplated that section 101's employee protections would not apply to security screeners, because it mandated only federal oversight of screeners, but not federal employment:
(e) Supervision of screening. 0907 All screening of passengers and property at airports under this section shall be supervised by uniformed Federal personnel of the Transportation Security Administration who shall have the power to order the dismissal of any individual performing such screening.
(f) Limitation on right to strike. 0907 An individual that screens passengers or property, or both, at an airport under this section may not participate in a strike, or assert the right to strike, against the person (including a government entity) employing such individual to perform such screening.
In re TSA and AFGE, No. WA-RP-03-0023 at 9 n. 21 (F.L.R.A. July 7, 2003). Initially, the House rejected the Senate's version of the TSA legislation, rejecting on November 1, 2001 H. Amdt. 384, which would replace the text of H.R. 3150 with text identical to S. 1447. Id. Some Representatives objected that S. 1447 "gives the [head of the TSA] broad discretion over pay, health care, whistle-blower protection, veterans' preference, workers' compensation, and the right to organize." TSA and AFGE at 10, n. 21 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H7648 (Nov. 1, 2001)). Another Representative criticized the Senate bill for not "even giv[ing] these employees the protection of fair labor standards . . . nondiscrimination acts, all of the law that provides family and medical leave. . . ." Id. H.R. 3150 0907 with Section 101 but without federalization of screeners 0907 was passed by the House and sent to conference on November 6, 2001.
The bill that emerged from conference on November 19, 2001 adopted the Senate's formulation of the Under Secretary's authority to determine the terms of employment of TSA screeners. Sen. John Rockefeller remarked 79 that the "critical matters" of "health care, worker's compensation, and civil rights and whistleblower *79 protection . . . are left to the discretion of the Department of Transportation. . . ." In re TSA and AFGE, No. WA-RP-03-0023 at 7 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S11982 (Nov. 16, 2001)). House Rep. Janice Schakowsky expressed her "understanding that the Secretary is given 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." In re TSA awl AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H8313 (Nov. 16, 2001)). Both expressed their "hope[s] that the Secretary will act to give those benefits and rights to federal screeners and security workers." Id.
B. The Reduction in Force
Between April and December 2002, the TSA hired more than 62,000 screening personnel in a "dynamic, high pressure rollout" to meet 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 ATSA. Def.'s Opp'n to Pls.' Mot. for Prelim. Inj., Ex. 1 (8/25/03 Whitford Decl.) (hereinafter "Whitford Decl.") ¶¶ 5-6. Due to "haphazard or ill-planned deployment of personnel," however, approximately 400 airports became either overstaffed or understaffed. Springs v. Stone, 362 F.Supp.2d 686, 690-91 (E.D.Va.2005) (citations omitted); Whitford Decl. ¶ 8. Though it had met congressional deadlines, TSA now was concerned with its "obligation as stewards of taxpayer money." Whitford Decl., Tab A (4/30/03 Letter from James Loy to TSA Screeners). TSA consequently rolled out a "right-sizing" plan that called for elimination of 3,000 screener positions by May 31, 2003, and another 3,000 by September 30, 2003.[6]Id.
Recognizing that "a traditional seniority-based reduction was not feasible given that all hiring had taken place airport by airport only within the past year," the TSA Guidance Team responsible for "right-sizing" the screener workforce developed a competency-based process for terminating screeners, based on tests of measuring a

screener's ability to identify x-ray images of prohibited items in luggage, knowledge of screening procedures. Whitford Decl. ¶¶ 11, 20, 22. Due to the May 30, 2003 deadline for eliminating 3,000 screener positions, however, the first phase of the reduction incorporated only a conduct checklist, "which identified previously documented on-the-job conduct and performance issues," in the competency evaluation. Id. ¶¶ 22, 25. Officials at overstaffed airports completed the checklists and forwarded them to TSA Headquarters for review. Id. ¶ 26. Approximately 800 TSA screeners were terminated via letters on May 23 and May 30, 2003. Compl. ¶ 30; Springs, 362 F.Supp.2d at 692. The remaining 2,200 of the targeted 3,000 employees were eliminated through attrition. Springs, 362 F.Supp.2d at 692.

All Plaintiffs in this case were among those "RIFed" in late May 2003. Compl. ¶ 30. Plaintiffs' separation letters stated that separation was as a result of overstaffing resulting from budget allocations and "not for cause." Id. A TSA press release of May 30, 2003 reassured the public that the screener job cuts would have no impact on security or passenger wait times. Compl., Ex. 4 (5/30/03 TSA Press Release).[7] The press release also stated that:

80

*80 Whenever possible, normal attrition, including resignations and retirements, is being used for

rightsizing at individual airports. Employees may be terminated for cause, including criminal

background, failure to pass drug and alcohol tests, and falsification of employment documents.

Beyond that, the actual reductions in force are based on job performance.

Id. Plaintiffs Leimer, Card, Moriarty, and Thorton are all veterans. Compl. ¶ 31. Plaintiffs Leimer, Card, Campbell, and Moriarty were all over 40 years old. Id. ¶ 32. All Plaintiffs were union activists. Id. ¶ 33.

Based on the foregoing events and their interpretation of the ATSA provisions, Plaintiffs filed an action in this Court on August 13, 2003, claiming inter alia that TSA's RIF violated the ATSA by failing to take into account seniority and veterans' preference as mandated by section 101; violated other federal employee-protection laws, including the VPA protections for veterans, APA protections against arbitrary and capricious agency actions, and ADEA protections against age discrimination; and violated the First and Fifth Amendments to the U.S. Constitution by hampering their freedom to join a union and by making disparaging public remarks in the press release. Following this Court's denial of Plaintiffs' Motion for a Preliminary Injunction and deferral of Plaintiffs' Motion for Class Action Certification, Defendant now moves this Court to dismiss all Plaintiffs' claims.

II: LEGAL STANDARDS

A. Motion to Dismiss
1. Rule 12(b)(1)
A court must dismiss a case when it lacks subject matter jurisdiction, pursuant to Rule 12(b)(1). In general, a motion to dismiss under Federal Rule of Civil Procedure 12(b) should not prevail "unless plaintiffs can prove no set of facts in support of their claim that would entitle them to relief." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A court may appropriately dispose of a case under 12(b)(1) for standing, and may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted); see also Artis v. Greenspan, 223 F.Supp.2d 149, 152 n. 1 (D.D.C.2002) ("A court may consider material outside of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject matter jurisdiction."); Vanover v. Hautman, 77 F.Supp.2d 91, 98 (D.D.C.1999) ("where a document is referred to in the complaint and is central to plaintiffs claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment") (citing Greenberg v. The Life Ins. Co. of Virginia, 177 F.3d 507, 515 (6th Cir.1999)). At the stage in litigation when dismissal is sought, the plaintiffs' complaint must be construed liberally, and plaintiffs should receive the benefit of all favorable inferences that can be drawn from the alleged facts. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). In spite of the favorable inferences that a plaintiff receives on a motion to dismiss, it remains the

plaintiffs' burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm Bureau v. 81 Envtl. Prot. *81 Agency, 121 F.Supp.2d 84, 90 (D.D.C. 2000).
2. Rule 12(b)(6)
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, unlike resolving a motion under Rule 12(b)(1), the court must construe the complaint in a light most favorable to the plaintiffs and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re. United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) ("The complaint must be `liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). While the court must construe the Complaint in the Plaintiffs' favor, it "need not accept inferences drawn by the plaintiffs if such inferences are not supported by the facts set out in the complaint." Kowal, 16 F.3d at 1276. Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Sch., 117 F.3d at 624; Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep't of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control).
B. Standards for Administrative Agency Review
Plaintiffs in this case challenge the Transportation Security Agency's construction of the ATSA, specifically, the Agency's interpretation of the sections 111(d) and 101. The standard for the Court's review of such challenges is known as Chevron review, after the Supreme Court's decision in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The central question for the reviewing court under Chevron "is whether the agency's construction of the statute is faithful to its plain meaning, or, if the statute has no plain meaning, whether the agency's interpretation is based on a permissible construction of the statute.'" Arent v. Shalala, 70 F.3d 610, 615 (D.C.Cir.1995) (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Under the Chevron analysis, a court first asks "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; see also id. at 843 n. 9, 104 S.Ct. 2778 ("[A]dministrative constructions which are contrary to clear congressional intent" must be rejected by the court). "When performing this first step, [courts] employ traditional tools of statutory construction." Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643 (D.C.Cir.2000) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Among these tools is a statute's framework and legislative history. See Am. Fed'n of Labor & Congress of Indus. Orgs. v. Fed. Election Comm'n, 333 F.3d 168, 172 (D.C.Cir.2003) ("AFL-CIO"); Am. Bankers Ass'n v. 82 Nat'l Credit Union Admin., 38 F.Supp.2d *82 114, 134 (D.D.C.1999); see also Natural Res. Del Council v. Browner, 57 F.3d 1122, 1127 (D.C.Cir.1995) ("Reference to statutory design and pertinent legislative history may often shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.'") (quoting Am. Scholastic TV Programming Found. v. Fed. Commc'ns Comm'n, 46 F.3d 1173, 1178 (D.C.Cir. 1995)). However, canons of construction are only to be used during step one of the Chevron analysis to determine if "Congress had a specific intent on the issue in question." Mich. Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93 (D.C.Cir.1989) (emphasis in original). In conducting this stage of the Chevron analysis, the Court "giv[es] no deference to the agency's interpretation." AFL-CIO, 333 F.3d at 173.
If the court finds that "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. 2778. "A statute is considered ambiguous if it can be read more than one way." AFLCIO, 333 F.3d at 173. "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had

arisen in a judicial proceeding." Chevron, 467. U.S. at 843 n. 11, 104 S.Ct. 2778. However, if the Agency's interpretation unduly compromises the statute's "purposes, it is not a `reasonable accommodation' under the Act, and it would therefore not be entitled to deference." Orloski v. Fed. Election Comm'n, 795 F.2d 156, 164 (D.C.Cir.1986) (quoting Chevron, 467 U.S. at 845, 104 S.Ct. 2778); see also Chevron, 467 U.S. at 845, 104 S.Ct. 2778 (providing that if the agency's "choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.") (quoting United States v. Shimer, 367 U.S. 374, 382, 81 S.Ct. 1554, 6 L.Ed.2d 908 (1961)); Common Cause v. Fed. Election Comm'n, 692 F.Supp. 1391, 1396 (D.D.C.1987) ("[W]here the agency interprets its statute in a way that flatly contradicts Congress's express purpose, the court may 0907 indeed must 0907 intervene and correct the agency.").
III: DISCUSSION
The Court first discusses the central question in this case 0907 the meaning of ATSA § 111(d), 49 U.S.C. § 44935 note 0907 and then addresses Plaintiffs' Counts I to VII in turn.
A. The Meaning of ATSA § 111(d), 49 U.S.C. § 44935 note
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, 49 U.S.C. § 114(n), when hiring and firing airport security screeners. This question has been previously addressed by the Federal Circuit in Conyers v. Merit Systems Protection Board, 388 F.3d 1380 (Fed.Cir. 2004), the Eastern District of Virginia in Springs v. Stone, 362 F.Supp.2d 686 (E.D.Va.2005), and the Federal Labor Relations Authority in two cases, In re TSA and AFGE, No. WA-RP-03-0023 (F.L.R.A. July 7, 2003), and its appeal in In re 83 United States Department of Homeland Security and Transportation Security *83 Directorate Transportation Security Administration and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFL-CIO, 59 F.L.R.A. 423, 2003 WL 22669101 (November 4, 2003).[8] These tribunals all concluded that ATSA § 111(d) renders all other federal personnel statutes, including ATSA § 101, inapplicable to the Under Secretary's powers to "employ, appoint, discipline, [and] terminate" screeners. The D.C. Circuit Court of Appeals touched on the question in AFGE v. Loy, 367 F.3d 932 (D.C.Cir.2004), but concluded the question was not properly before the court.
This Court finds, primarily for the reasons expressed in In re TSA and AFGE (F.L.R.A July 7, 2003), that ATSA § 111(d), 49 U.S.C. § 44935 note, gives the TSA Under Secretary broad discretion in screener employment decisions. ATSA § 101, 49 U.S.C. § 114(n), governs TSA personnel management only for nonscreener TSA employees. The plain text of the statute shows that Congress intended to invest the TSA Under Secretary with authority to exempt security screeners from the employee protections of otherwise applicable federal personnel laws. Furthermore, the ATSA's legislative history abolishes any possible ambiguity in the statute's meaning.
1. The "Plain Meaning" of ATSA Sections 111(d) and 101 Shows That Congress Intended to Invest the TSA Under Secretary with Authority to Exempt Security Screeners from the Employee Protections of Otherwise Applicable Federal Personnel Laws
With respect to statutory construction, the Supreme Court has emphasized that "[i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313(1988) (citations omitted). The "first step" in the canon of statutory construction is to "begin with a `plain language' analysis of the statutory text." Cal. Indep. Sys. Operator Corp., 372 F.3d at 400. That is, the court is to assume "that the legislative purpose is expressed by the ordinary meaning of the words used." Sec. Indus. Ass'n v. Bd. of Governors, 468 U.S. 137, 149, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984) (internal quotation and citations omitted). "Where [] the plain language of the statute is clear, the court generally will not inquire further into its meaning." QiZhuo v. Meissner, 70 F.3d 136, 140 (D.C.Cir.1995). If the plain language of the statute is 84 unclear or ambiguous, it is appropriate to examine the legislative history *84 of the statute to determine the intent of Congress. TSA and AFGE (F.L.R.A. July 7, 2003) (citing Munson v. Merit Systems Protection Board, 216 F.3d

1037, 1040 (Fed.Cir.2000); AFGE, Local 3295 v. FLRA, 46 F.3d 73, 77 (D.C.Cir.1995) (Wald, C.J., dissenting)). The project for the court is in both cases to determine the intent of Congress when applying the statute.
In its entirety, the Section 111(d) reads: 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.
49 U.S.C. § 44935 note.
Plaintiffs argue that Section 111(d) does not grant the Secretary discretion to not apply the FAA personnel management system to screeners, because "[b]oth parties agree that ATSA explicitly mandates that the TSA adopt the personnel system in place at the Federal Aviation Administration (FAA) for their employees at large" and "notwithstanding" language should not "negate[] an earlier provision of the same law." Pls.' Opp'n at 12, 14 (citing ATSA § 101, 49 U.S.C. § 114(n)). Defendant counters that "[t]he statutory command [of Section 111(d) ] is plain and incontrovertible," showing "the unambiguously expressed intent of Congress" to give the Under Secretary unfettered discretion concerning airport security screener personnel decisions. Def.'s Mem. to Dismiss at 10, 13, 16.
The Court finds that the plain text favors Defendant's interpretation for several reasons. First, a "notwithstanding" clause "clearly signals the drafter's intention that the provisions of the `notwithstanding' section override conflicting provisions of any other section." Springs, 362 F.Supp.2d at 697 (quoting Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993)); see also Shomberg v. United States, 348 U.S. 540, 547-48, 75 S.Ct. 509, 99 L.Ed. 624 (1955) (by using "`notwithstanding' language . . . Congress clearly manifest[s] its intent that certain policies should override" other provisions in a statute); AFGE v. FLRA 46 F.3d 73, 76 (D.C.Cir.1995) (finding the phrase "notwithstanding any other provision of law" to vest broad discretion in a federal agency); Liberty Maritime Corp. v. United States, 928 F.2d 413, 416 (D.C.Cir.1991) (noting that a "clearer statement of law" than a `notwithstanding clause "is difficult to imagine"). Second, throughout the ATSA, Congress gave specific attention towards screeners as different from other classes of employees covered by the Act. See Springs, 362 F.Supp.2d at 699 (noting that "[t]here is a rational basis for distinguishing, as Congress has done, between airport security screeners and other TSA employees. . . . A different choice might have been made but Congress could rationally conclude that airport security requires federal employees who operate with more flexibility than either civil service or collectively-bargained protections and procedures would allow."). Related to this point, Defendant notes that "[w]hile screeners are collectively the vast majority of TSA employees, nonscreener position types are far more numerous" so that 101 might be intended to "cover the many different kinds of positions for which Congress could not be expected to legislate more specifically." Def.'s Reply at 13 n. 8. 85 Third, Congress juxtaposed a long list of *85 personnel functions 0907 "employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment" 0907 with the "notwithstanding any other law" phrase, and in addition provided the section's final sentence that "The Under Secretary shall establish levels of compensation and other benefits for individuals so employed." 49 U.S.C. § 44935 note. The list of functions and final sentence emphasize the section's focus on the Secretary's power to set terms of employment and termination. Finally, Congress "frequently exempts federal agencies from the provisions of federal personnel laws." Def.'s Mem. to Dismiss at 13 (citing Gardner v. Library of Congress, 774 F.2d 1081 (Fed.Cfr.1985); Wilks v. Army, 91 M.S.P.R. 70 (2002); Beckstrom-Parcell v. Veterans Affairs, 91 M.S.P.R. 656 (2002)). As such, the Court finds that the plain text of Section 111(d) clearly signals Congress's intention to grant the TSA Under Secretary authority to design a personnel management system for airport security screeners, to include or not include at the Secretary's discretion provisions of other federal personnel laws, including those in the FAA's personnel management system in 49 U.S.C. § 40122(g).
Plaintiffs make several arguments contesting this conclusion. First, Plaintiffs argue that a "RIF is neither part of employment, appointment, disciplinary action, termination or a term or condition of employment. . . ." Pls.' Opp'n at 13. Plaintiffs contend that "a RIF is not a termination," but rather "a separation from employment due to reasons unrelated to cause." Id. In support, Plaintiffs cite cases in which courts found that a "reduction-in-force" is

not encompassed by "condition of employment," citing James v. Von Zemenszky, 284 F.3d 1310 (Fed.Cir.2002), or that a RIF is not a termination, citing Brooks v. Board of Commissioners of Chicago Housing Authority, 1998 WL 214669 (N.D.Ill. 1998). Defendant counters that, "to the extent case law informs the issue, the D.C. Circuit . . . has previously used the terms `RIF,' `termination,' and `separation' synonymously: `In so arguing, the Union acknowledges that RIF'd teachers have available several avenues for challenging their removals in posttermination hearings if they believe either that their terminations were discriminatory or retaliatory, or that notice and separation procedures were not followed." Def.'s Reply at 11-12 (citing Washington Teachers' Union Local No. 6, Am. Federation of Teachers, AFL-CIO v. Board of Educ. of the Dist. of Columbia, 109 F.3d 774, 779 (D.C.Cir. 1997) (emphasis added)). In the Court's view, Plaintiffs' argument is a stretch, to say the least. The relevant inquiry here is if, in enacting the ATSA, Congress intended the term "termination" to encompass a reduction-in-force. The plain meaning of "termination" encompasses a reduction-inforce. Plaintiffs offer no evidence that suggests Congress intended otherwise. One unpublished case from the Northern District of Illinois demonstrating that a legislature differentiated between the terms in a different statute is insufficient.
Plaintiffs further argue that a "notwithstanding" provision cannot negate an earlier provision of the same law. Pls.' Opp'n at 14. Rather, Plaintiffs contend that a longstanding rule of construction "mandate[s] that statutes be construed to give effect to every clause." United States v. Rodriguez, 26 F.3d 4, 8, (1st Cir.1994); see also Tobey v. NLRB, 40 F.3d 469, 471 (D.C.Cir.1994). Defendant points out that a "provision that applies `notwithstanding any other provision of law' may override not only provisions of some other Act but also other provisions contained in the same Act." Def.'s Reply at 12 (citing Liberty Maritime Corp. v. United States, 928 F.2d 413, 416-17 & n. 4 86 (D.C.Cir.1991)). Defendant notes too that "Section 111(d) conveys its authority [n]otwithstanding any other *86 provision of law,' rather than, as AFGE would have it, [n]otwithstanding any provision of other law.'" Id. A "notwithstanding" provision may indeed negate an earlier provision of the same law, if Congress so intends. A rule of statutory construction cannot impede that power. For that and other reasons discussed supra, Section III (A), the Court rejects Plaintiffs' interpretation of the ATSA.
For the foregoing reasons, the Court finds that the plain text of Section 111(d) clearly signals Congress's intention to grant the TSA Under Secretary authority to design a personnel management system for airport security screeners, to include or not include at the Secretary's discretion provisions of other federal personnel laws, including those in the FAA's personnel management system in 49 U.S.C. § 40122(g).
2. The Legislative History of ATSA Sections 111(d) and 101 Conclusively Shows that Congress Intended to Invest the Under Secretary with Authority to Exempt Screeners from the Employee Protections of Federal Personnel Laws
Not only does the plain text of the statute favor Defendant's interpretation, but the legislative history of ATSA Sections 111(d) (49 U.S.C. § 44935 note) and 101, (49 U.S.C. § 114(n)) conclusively shows that Congress intended to invest the Under. Secretary with Authority to exempt airport security screeners from the employee protections of federal personnel laws. The relevant legislative history includes precursor texts of 111(d) and 101, as well as legislators' specific comments about 111(d) in the: Congressional Record.
First, precursor texts of ATSA § 111(d) show incontestably that Congress intended to allow the Under Secretary to exempt screeners from the employee protections federal personnel laws, including part III of title 5, United States Code. The original version of 111(d) in S. 1447, as introduced on September 21, 2001, provided:
Sec. 10. Training and employment of security screening personnel.
(f) Authorization of Employment. 0907 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 S. Amdt.. 1854, to read:
Sec. 10. Training and employment of security screening personnel.

(d) Expedited personnel process. 0907
(1) Authorization of employment. 0907 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 Order.
(2) Strikes prohibited. 0907 An individual employed as a security screener is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5.
In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R A. July 7, 2003). The provision was further amended 87 by S. Amdt. 1881 on October 11, 2001. The purpose of S. Amdt. 1881 was "Rio authorize *87 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." In re TSA and AFGE, No. WA-RP-03-0023 at 8 n. 20 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S10520 (Oct. 11, 2001)). S. Amdt. 1881 replaced the above subsections with:
(d) Screener personnel. 0907 Notwithstanding any other provision of law, the Secretary of Transportation may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of such a number of individuals as the Secretary determines to be necessary to carry out the passenger security screening functions of the Secretary under section 44901 of title 49, United States Code.
(e) Strikes prohibited. 0907 An individual employed as a security screener under section 44901 of title 49, United States Code, is prohibited from participating in a strike or asserting the right to strike pursuant to section 7311(3) or 7116(b)(7) of title 5, United States Code.
In re TSA and AFGE, No. WA-RP-03-0023 at 7 n. 20 (F.L.R.A. July 7, 2003). No other changes of significance to this case were made to this provision in S. 1447 that differentiate it from the final version appearing in Pub.L. 107-71, cited, above.
After examining S. Amdt. 1881 in particular, it is clear that the Senate intended to invest the Under Secretary with authority to exempt screeners from the employee protections of federal personnel laws, particularly part III of title 5, United States Code. The amendment expressly deletes the requirements from the earlier version that employment of screeners be "in accordance with the provisions of part III, title 5, United States Code." A clearer demonstration of the Senate's intent that employment of screeners need not be "in accordance with the provisions of part III, title 5, United States Code" is hard to imagine. As such, the legislative history of Section 111 (d) as it evolved through various drafts in the Senate clearly shows that the Senate intended to grant the Under secretary broad discretion to exempt screeners from federal personnel laws.
Second, because the House bill with the precursor to ATSA § 101 did not originally contemplate federalization of screeners, the House did not contemplate that the personnel management system called for in ATSA § 101 would apply to screeners. ATSA § 101 came originally from House bill H.R. 3150, introduced on October 17, 2001. Section 101 provides that the personnel management system of the FAA apply to TSA employees. The FAA personnel management system is more "flexible" than that applicable to most federal employees, in that only enumerated employee protections federal personnel laws apply, including whistleblower protection, veterans' preference, non-discrimination, insurance, and appeals to the Merit Systems Protection Board. See 49 U.S.C. § 40122(g). Importantly, unlike the bill passed by the Senate, the House bill contemplated that section 101's employee protections would not apply to security screeners, because it mandated only federal oversight of screeners, but not federal employment:
(e) Supervision of screening. 0907 All screening of passengers and property at airports under this section shall be supervised by uniformed Federal personnel of the Transportation Security

Administration who shall have the power to order the dismissal of any individual performing such screening.

(f) Limitation on right to strike. 0907 An individual that screens passengers or property, or both, at an

airport under this section may not participate in a strike, or assert the right to strike, against the

88

person (including a government *88 entity) employing such individual to perform such screening.

In re TSA and AFGE, No. WA-RP-03-0023 at 9 n. 21 (F.L.R.A. July 7, 2003).

Initially, the House rejected the Senate's version of the TSA legislation, rejecting on November 1, 2001 H. Amdt. 384, which would replace the text of H.R. 3150 with text identical to S. 1447. Id. Some Representatives objected that the Senate bill "gives the [head of the TSA] broad discretion over pay, health care, whistleblower protection, veterans' preference, workers' compensation, and the right to organize." TSA and AFGE at 10 n. 21 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H7648 (Nov. 1, 2001)). Another Representative criticized the Senate bill for not "even giv[ing] these employees the protection of fair labor standards . . . nondiscrimination acts, all of the law that provides family and medical leave. . . ." Id. H.R. 3150 0907 with section 101 but without federalization of screeners 0907 was passed by the House and sent to conference on November 6, 2001. As such, the House Representatives clearly understood that the Senate bill did not provide to security screeners the protections of federal personnel laws.

The bill that emerged from conference on November 19, 2001 adopted the Senate's formulation of the Under Secretary's broad authority to determine the terms of employment of TSA screeners. Senator John Rockefeller remarked that the "critical matters" of "health care, worker's compensation, and civil rights and whistleblower protection . . . are left to the discretion of the Department of Transportation. . . ." In re TSA and AFGE, No. WARP-03-0023 at 7 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. S11982 (Nov. 16, 2001)). House Representative Janice Schakowsky expressed her "understanding that the Secretary is given 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." In re TSA and AFGE, No. WRP-03-0023 at 11 (F.L.R.A. July 7, 2003) (quoting 147 Cong. Rec. H8313 (Nov. 16, 2001)). Both Congresspersons expressed their "hope[s] that the Secretary will act to give those benefits and rights to federal screeners and security workers." Id. Importantly, the FAA personnel management system in Section 101 provides for retirement options, and coverage by non-discrimination, whistleblower, health and safety laws 0907 if the Congresspersons believed Section 101 applied to security screeners, they would have neither ac knowledged that the Secretary had authority to withhold such protections, nor expressed their hopes that the Secretary would in his discretion choose to provide the protections. See 49 U.S.C. § 40122(g). It was therefore clear to the Congresspersons that Section 101 did not apply to airport security screeners.

In short, the plain text and legislative history conclusively show that Congress did not intend for ATSA § 101 to apply to airport security screeners. Instead, in enacting ATSA § 111(d), Congress intended to invest the Under Secretary with authority to exempt airport security screeners from the employee protections of federal personnel 89 laws.[9] As such, in examining *89 Plaintiffs' Counts I to VII in the following sections, this Court will heed the Supreme Court's admonition in Chevron: "If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. Because the plain text and legislative history of ATSA 111(d) are conclusive and unambiguous in their indication of congressional intent, the Court will not proceed with step two of the Chevron analysis. See Cal. Indep. Sys. Operator Corp., 372 F.3d at 399 (D.C.Cir. 2004); Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778.

B. The TSA RIF Did Not Violate the ATSA by Failing to Adopt the FAA Personnel Management System for Security Screeners (Count I)

In Count I, Plaintiffs claim that the TSA RIF violated the ATSA, because "ATSA [§ 101] explicitly mandates that the Federal Aviation Administrations's (FAA) personnel management system as defined in 49 U.S.C. § 40122 shall apply to" TSA security screeners. See Compl. ¶¶ 20-21, 38-39 (Count I 0907 ATSA 101).

As discussed above, ATSA § 101 does not apply to TSA security screeners. ATSA § 101 directs the TSA to establish for most of its employees the FAA personnel management system in 49 U.S.C. § 40122. ATSA § 111(d) grants the TSA Under Secretary authority not to establish such a personnel management system for airport security screeners. Consequently, the May 2003 TSA RIF of security screeners did not violate the ATSA by allegedly failing to follow FAA personnel management practices pursuant to 49 U.S.C. § 40122. Count I of Plaintiffs' Complaint is therefore dismissed.
C. The TSA RIF Did Not Violate the ATSA and Veterans' Preference Act of 1944, 5 U.S.C. § 3901 et seq., by Not Taking Into Account Military Service, Tenure of Employment, and Efficiency Ratings (Count II)
In Count II, Plaintiffs claim that the May 2003 TSA RIF violated the ATSA and Veterans' Preference Act of 1944 by not taking into account military service, tenure of employment, and efficiency ratings. Compl. ¶¶ 40-41 (Count II 0907 VPA). Plaintiffs argue that ATSA § 101 mandates that FAA's personnel management system under 49 U.S.C. § 40122 applies to TSA security screeners. See ATSA 101, 49 U.S.C. § 114(n). Plaintiffs contend that "[p]ursuant to § 40122(g)(1), [the] FAA expressly incorporates the provisions of Title 5 relating to sections 2208-3320 for veterans' preference," and "[t]he FAA RIF procedures are consistent with the Veterans' Preference Act of 1944." Compl. ¶¶ 22-25.
As discussed above, while ATSA § 101 directs the TSA to establish for most of its employees the FAA personnel management system in 49 U.S.C. § 40122, ATSA § 111(d) grants the TSA Under Secretary authority not to establish such a personnel management system for airport security screeners. In enacting ATSA § 111(d) 90 Congress intended to invest the. Under Secretary with authority to exempt airport *90 security screeners from the employee protections of federal personnel laws, including the Veterans' Preference Act of 1944, 5 U.S.C. § 3501 et seq. (contained within part III of title 5, United States Code). Consequently, the May 2003 TSA RIF did not violate either 49 U.S.C. § 40122 or the Veterans' Preference Act of 1944 by allegedly failing to comport with these laws. Count II of Plaintiffs' Complaint is therefore dismissed.
D. The Court Does Not Have Jurisdiction to Review the TSA RIF Standard Under the APA Because ATSA § 111 (d) Commits Design of a RIF to Agency Discretion (Count III)
In Count III, Plaintiffs claim that "[t]he TSA RIF `standard' is arbitrary and capricious agency action in violation of the APA, 5 U.S.C. § 706." See. Compl. ¶¶ 42-43 (Count III 0907 APA). By the RIF "standard," Plaintiffs refer to the fact that the first phase of the RIF incorporated only a conduct checklist, which identified previously documented on-the-job conduct and performance issues. Whitford Decl. ¶¶ 22, 25. Approximately 800 TSA screeners were terminated via letters on May 23 and May 30, 2003 in this phase. Compl. ¶ 30; Springs, 362 F.Supp.2d at 692. In Count III, Plaintiffs incorporate by reference their allegations that the RIF standard "does not follow FAA RIF procedures and (1) places undue emphasis on de minimis memoranda of counseling and/or disciplinary actions, (2) does not preserve permanent before temporary employees, (3) does not distinguish between positions, (4) does not consider length of federal service, (5) does not preserve veterans' preference, and (6) does not create restoration rights." Compl. ¶ 39. Plaintiffs argue that these failures are arbitrary and contrary to law because "[t]he ATSA explicitly mandates that the Federal Aviation Administration's (FAA) personnel management system as defined in 49 U.S.C. § 40122 shall apply to [screeners]," and the FAA incorporates in its RIF standards veterans' preference, preference for permanent as opposed to temporary employees, length of federal service, and restoration rights pursuant to 49 U.S.C. § 40122(g)(1). See Compl. ¶¶ 20-25. For the reasons that follow, the Court concludes that, because ATSA § 111(d) commits to TSA's discretion the design of RIF standards, the agency's action is unreviewable.
The Administrative Procedure Act ("APA") provides that "[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (courts will uphold a decision of less than ideal clarity if the agency's rationale may reasonably be discerned); see also Cellco P'ship v. Fed. Commc'ns Comm'n, 357 F.3d 88, 93-94 (D.C.Cir.2004) (noting "arbitrary and capricious" review is "highly deferential . . . presum[ing] the validity of agency action . . .

[which] must [be] affirm[ed] unless the Commission failed to consider relevant factors or made a clear error in judgment.") (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). However, judicial review of agency actions is allowed under the APA, "except to the extent that . . . agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Courts "begin with the strong 91 presumption that Congress intends judicial review of administrative action," but hold themselves *91 without jurisdiction to conduct a review in "those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Springs, 362 F.Supp.2d at 702-03 (quoting Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) and Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). "There is no law to apply if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's discretion.'" Springs, 362 F.Supp.2d. at 703 (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)).
In this case, Plaintiffs ask the Court to review the TSA's RIF standard against FAA RIF standards that Plaintiffs contend the TSA was bound to follow under 49 U.S.C. § 114(n). In the foregoing analysis, the Court determined pursuant to the first step of the Chevron analysis that 49 U.S.C. § 114(n) does not apply to TSA airport security screeners. See supra § III(A). The ATSA "offers no guidance on how TSA should implement a RIF," but instead ATSA § 111(d) "explicitly authorizes the exercise of broad discretion not constrained by the judicial review provisions contained in the APA." Springs, 362 F.Supp.2d at 703; see also AFBE v. FLRA, 46 F.3d 73, 76 (D.C.Cir.1995); Colorado Nurses Assoc. v. FLRA, 851 F.2d 1486, 1489 (construing a statute similar to ATSA § 111(d) to provide an agency with "unfettered discretion"). Consequently, any judicial review of the TSA's RIF standard would both lack any legal basis or legal standard against which to measure its capriciousness, and would fail to respect Congress's express intent that the TSA have broad discretion in making employment decisions for security screeners. See Springs, 362 F.Supp.2d at 703 ("the sweeping nature of ATSA § 111(d) exempts the TSA from adhering to the FAA RIF procedures . . . and the ATSA itself contains no provisions directing TSA how to implement RIFs against which this Court could scrutinize TSA's conduct. In addition, ATSA § 101(n), 49 U.S.C. 114(n), grants the Under Secretary the authority to make appropriate modifications to the FAA personnel management system, the default system put in place by Congress. There is simply nothing to which this Court could turn to evaluate whether the RIF standards developed by TSA were arbitrary or capricious.") (internal citations omitted). In short, ATSA § 111(d) grants the TSA discretion to incorporate or not incorporate in its RIF the termination criteria Plaintiffs complain were not incorporated. This Court does not have jurisdiction to review that exercise of discretion. Count III of Plaintiffs' Complaint is therefore dismissed.
E. Plaintiffs Claim that the TSA RIF Violated the Age Discrimination in Employment Act by Disparately Impacting Screeners Over 40 Years Old Fails to State a Claim (Count IV)
In Count IV, Plaintiffs claim that "[t]he RIF procedure violates the Age Discrimination in Employment Act (ADEA), 29 USCA § 621 et seq., in that it disparately impacts employees over 40 years old." See Compl. ¶¶ 44-46 (Count IV 0907 ADEA). Because the ADEA is not part of federal personnel laws, TSA's security screeners are entitled to the ADEA's protection. See supra, Section III(A). Plaintiffs' ADEA claims shall be dismissed, however, because under the ADEA, claims of discrimination based on disparate impact are not cognizable.
A claim of disparate impact is predicated on "proof that the employer utilizes `employment practices that are 92 facially neutral in their treatment of different *92 groups but . . . in fact fall more harshly on one group than
another and cannot be justified by business necessity.'" Def.'s Mem. to Dismiss at 23 (quoting Mullin v. Raytheon Co., 164 F.3d 696, 699-700 (1st Cir.1999) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977))). Defendant points out that
Although neither the Supreme Court nor this Circuit has expressly decided the issue, see Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) ("we have never decided whether a disparate impact theory of liability is available under the ADEA"); Koger v. Reno, 98 F.3d 631, 639 (D.C.Cir.1996) ("assum[ing] without deciding that disparate impact analysis applies to age discrimination claims"); two District of Columbia district court decisions subsequent to Koger have concluded that the ADEA does not allow for disparate impact claims. See Evans v. Atwood, 38 F.Supp.2d 25, 30 (D.D.C. 1999) (finding ADEA does not allow for

disparate impact claims because its text does not specifically provide for such claims); Hyman v. First Union Corp., 980 F.Supp. 38, 41 (D.D.C.1997) (finding claim of liability based on disparate impact theory not cognizable under ADEA). In addition, the D.C. Circuit recently has observed (in a different context) that the Supreme Court "has been reluctant to extend the disparate impact theory to other laws prohibiting discrimination even where the statutory language bears greater resemblance," citing Hazen as an example. Contractors' Labor Pool, Inc. v. NLRB, 323 F.3d 1051, 1060 (D.C.Cir.2003) . . . As the Tenth Circuit has held, "[t]he [Supreme] Court, although not expressly ruling on the issue, indicated in dicta that the ADEA only prohibits intentional discrimination." Ellis v. United Airlines, Inc., 73 F.3d 999, 1008 (10th Cir. 1996).
Def.'s Mem. to Dismiss at 23-24.
To counter this argument, Plaintiffs submit only that "[w]hile Defendant is accurate that two U.S. District Courts for the District of Columbia have found that the language of the ADEA does not support a finding of disparate impact liability, this Circuit has not so ruled. Thus, while the lower court rulings are persuasive, they are not binding." Pls.' Reply at 18. While so much is true, two rulings from the instant District that claims of discrimination based on disparate impact are not cognizable under the ADEA are far more persuasive to this Court than Plaintiffs' mere assertion that those rulings are not binding and a complete lack of argument supporting an alternate finding. Hyman and Evans both firmly concluded that "the ADEA does not allow for disparate impact claims," after examining relevant Supreme Court precedent including Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), circuit court decisions including Ellis v. United Airlines, Inc., Inc., 73 F.3d 999 (10th Cir. 1996), and the text, legislative history, and policies underlying the ADEA. See Hyman, 980 F.Supp. at 40-41; Evans, 38 F.Supp.2d at 30. Plaintiffs supply no analysis critical of these District Court decisions; Plaintiffs discuss no cases with alternative findings; Plaintiffs set forth no arguments for why claims of disparate impact are or should be cognizable under the ADEA. It is not this Court's function to supply these arguments in Plaintiffs' stead and then rule on them. As such, the Court will simply follow Hyman and Evans in holding that Plaintiffs' claims of discrimination based on disparate impact are not cognizable under the ADEA.
93 Under Rule 12(b)(6), "Plaintiffs' factual allegations must be presumed true and *93 should be liberally construed in favor of plaintiffs." Hyman, 980 F.Supp. at 39 (citing Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C.Cir.1979)). "The complaint should be dismissed only if it appears beyond doubt that no set of facts proffered in support of plaintiffs' claim would entitle them to relief." Id. (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997))s. Here, there is no set of facts proffered that would entitle Plaintiffs to relief on their claim of disparate impact under the ADEA 0907 that claim is not legally cognizable, whatever the supporting facts. Count IV of Plaintiffs' Complaint is therefore dismissed.
F. Plaintiffs Lack Standing to Pursue Their Claim that the TSA RIF Violated the ATSA § 110(c) by Not Deploying "a sufficient number of Federal screeners" (Count V)
In Count V, Plaintiffs claim that "Defendant violated ATSA in that it did not deploy within the year requirement `a sufficient number of Federal screeners' to conduct screening of all passengers." See Compl. ¶¶ 47-48 (Count V 0907 ATSA 110(c)). Plaintiffs lack standing to pursue this claim.
A party seeking judicial review of administrative agency action under the APA must establish both constitutional and prudential standing.[10]See American Federation of Gov't Employees, Local 2119 v. Cohen, 171 F.3d 460, 465 (7th Cir.1999) (citing Ass'n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ("Data Processing")). Constitutional standing requires a party to show an "injury-in-fact." Data Processing, 397 U.S. at 153, 90 S.Ct. 827. Prudential standing requires a party to demonstrate that "the interest it seeks to protect is `arguably within the zone of interests to be protected or regulated by the statute . . . in question.'" Sierra Club v. EPA, 292 F.3d 895, 902 (D.C.Cir.2002) (quoting Data Processing, 397 U.S. at 153, 90 S.Ct. 827); see also Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (citing Clarke v. Securities Industry Ass'n, 479 U.S. 388, 396-397, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)); NFFE v. Cheney, 883 F.2d 1038, 1042-43 (D.C.Cir.1989).
To apply the "zone of interests" test, a court must "first discern the interests `arguably . . . to be protected' by the statutory provision at issue; [the court must] then inquire whether the plaintiff's interests affected by the agency

action in question are among them." Cohen, 171 F.3d at 469 (quoting National Credit Union Admin. v. First Nat'l Bank & Trust, 522 U.S. 479, 118 S.Ct. 927, 932, 140 L.Ed.2d 1 (1998) ("NCUA.")). Courts examine "Congress's 94 intent in enacting [the relevant statute] in order to determine whether [plaintiffs] were meant to be within *94 the zone of interests protected by those statutes." Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 523-24, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991). The zone of interests test "denies a right of review if the plaintiffs' interests are so marginally related to or inconsistent with the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Clarke v. Securities Indus. Assoc., 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987).

In this case, Plaintiffs challenge the TSA's implementation of ATSA § 110(c), which reads:

Not later than 1 year after the date of enactment of this Act, the Under Secretary of Transportation for Security 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, Federal Security Managers, Federal security personnel, and Federal law enforcement officers to conduct the screening of all passengers and property under section 44901 of such title at such airports.

Pub.L. 107-71, 115 Stat. 597, 616, 49 U.S.C. § 44901 note. This Court must first discern the interests "arguably . . . to be protected" by this provision. These interests could not be more obvious. 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), captioned "An act to improve airport security, and for other purposes." The provision above was meant to deploy the Act's new security measures as rapidly as possible.

The Court next inquires whether the TSA security screeners' interest in protecting their employment is arguably to be protected by the provision. Clearly, Congress directed that a "sufficient number of Federal screeners" be deployed to "conduct the screening of all passengers and property," in order to "improve airline security," not to provide employment opportunities. Congress directed that the federalization take place "[n]ot later than 1 year after the date of enactment of this Act" as a security measure to prevent a second September 11th, not as an employment program. In addition, as Defendant points out, "Plaintiffs' interest in securing a de facto status quo distribution of screeners is particularly inconsistent with ATSA's purpose to ensure aviation security in a time where the reality of budget constraints has forced TSA to reassess how most effectively to deploy its screener workerforce." Def.'s Reply at 6. Finally, Congress unambiguously intended with ATSA 111(d) to invest the Under Secretary of Transportation for Security with broad discretion to hire and fire security screeners.

In Air Courier Conference v. American Postal Workers Union, the Supreme Court reversed a Court of Appeals ruling that U.S. postal workers had prudential standing to challenge a rule suspending the Postal Service's statutory monopoly in the international remailing market. 498 U.S. 517, 111 S.Ct. 913, 112 L.Ed.2d 1125. The Court of Appeals had held that the Postal Service employees'"interest in preventing the reduction of employment opportunities" "plausibly relate[d]" to the intended purpose of the challenged rule 0907 protection of revenue for the Postal Service. Id. (quoting 891 F.2d 304, 310). The Supreme Court called this view "mistaken," stating that the statutes at issue indicated "congressional concern [ not with opportunities for postal workers but with receipt of necessary revenues for the Postal Service." Id. at 525-26, 111 S.Ct. 913. The Court illustrated its ruling by reciting an example from Lujan:

95

*95 [T]he failure of an agency to comply with a statutory provision requiring `on the record'

hearings would assuredly have an adverse effect upon the company that has the contract to

record and transcribe the agency's proceedings; but since the provision was obviously enacted to

protect the interests of the parties to the proceedings and not those of the reporters, that company

would not be `adversely affected within the meaning' of the statute.

Air Courier Conference, 498 U.S. at 526, 111 S.Ct. 913 (quoting Lujan, 497 U.S. at 883, 110 S.Ct. 3177).

Similarly, it is abundantly clear that ATSA § 110(c)(1), requiring the Under Secretary of Transportation to deploy "a sufficient number of Federal screeners" not later than one year after November 19, 2001, was meant to protect the interests of the traveling public, and not the employment of the screeners. See Springs, 362 F.Supp.2d at 705

("A mere modicum of common sense reveals that the purpose of § 110(c)(1) was to ensure that a sufficient airport security apparatus was put in place as soon as possible, and not to extend any form of civil relief in the event that the benchmark was not attained."). Plaintiff employees in this case cannot demonstrate that this provision was meant to protect their job security. As such, they lack standing to pursue this claim. Plaintiffs' Count V is therefore dismissed.
G. No Plaintiff Except Plaintiff Card, Has Alleged that His Union Activities, Protected by the First Amendment, Were a Substantial Motivating Factor in His Selection for the RIF (Count VI)
In Count VI, Plaintiffs claim that "[t]he RIF standard as applied disparately impacted on union activists and as such abrogates Plaintiffs' right of free association under the First Amendment of the U.S. Constitution." See Compl. ¶¶ 49-51 (Count VI-1st amend.). This Count shall be dismissed with respect to all Plaintiffs except Plaintiff Card because there is no disparate impact theory in First Amendment law, and because Plaintiffs, except Plaintiff Card, have failed to state a claim because they have not alleged that their union activity was a substantial motivating factor in their selection for the RIF.
First Amendment claims by government employees must satisfy a four-part test to succeed: (1) The employee must have been speaking on a matter of public concern; (2) the employee's interest in speaking must outweigh the government's interest in promoting the efficiency of public services; (3) the employee must show that his speech was a substantial motivating factor in prompting the retaliatory act of which he complains; and (4) the employee must negate the employer's showing, by a preponderance of the evidence, that the employer would have reached the same decision even in the absence of the protected conduct. AFGE v. Loy, 332 F.Supp.2d 218, 227-28 (D.D.C.2004) (citing Taylor v. Resolution Trust Corp., 973 F.Supp. 178, 182 (D.D.C.1997); Edmonds v. United States Dep't of Justice, 323 F.Supp.2d 65, 78-79 (D.D.C.2004) (citations omitted); Orange v. District of Columbia, 59 F.3d 1267, 1272 (D.C.Cir.1995); Hall v. Ford, 856 F.2d 255, 258 (D.C.Cir.1988)). The first two parts are matters of law, while the latter two are questions of fact. Id. at 227. Membership in a labor union is a matter of public concern. Id.; see also Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 830 F.2d 294 (D.C.Cir. 1987) ("The urge to unionize certainly falls within the category of expression that is `fairly considered as relating to any matter of political, social, or other concern to the community. . . .") (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).
96 *96 In this case Plaintiffs have failed to state a claim upon which relief can be granted under First Amendment law because, first, there is no disparate impact theory in First Amendment law, and, second, except for Plaintiff Card, Plaintiffs have failed to allege in any way that their union activities were a substantial motivating factor in prompting their dismissal during the late May 2003 reduction-in-force.
First, Plaintiffs assert a First Amendment claim under a theory that they themselves admit cannot form the basis of a claim under First Amendment law. Plaintiffs argue that "[t]he RIF standard as applied disparately impacted on union activists and as such abrogates Plaintiffs' right of free association under the First Amendment of the U.S. Constitution," while concomitantly conceding that "there is `no disparate impact theory in First Amendment law.'" Pls.' Mem. for Prelim. Inj. at 15 (quoting Terry v. Reno, 101 F.3d 1412, 1419-20 (D.C.Cir.1996)). As such, Plaintiffs admit that they cannot pursue their First Amendment claim under a disparate impact theory.
Second, Plaintiffs have failed to state a claim because they fail to allege in the Complaint that their union activities were a substantial motivating factor in prompting their dismissal during the late May 2003 reduction-inforce. The only factual allegations concerning union activities in the Complaint are: (1) an allegation that Plaintiff Leimer "was an AFGE activist" and "wrote a letter to Federal Security Director (FSD) Milano in defense of unions and unionism," (2) Plaintiff Card's declaration that "[m]anagement knew of [his] union activities and [he] was disciplined by TSA for lawfully discussing the union while off duty at the airport's break room," (3) an allegation that Plaintiff Moriarty "was an AFGE activist" and "[m]anagement knew of his activism as they maintained a list of union supporters. . . ." and (4) all plaintiffs were union activists. Compl. ¶¶ 4-5, 7, 33 & Ex. 18 (8/12/03 Card Declaration).
Importantly, nowhere do Plaintiffs assert that the TSA based its selection of Plaintiffs for the. RIF on union membership. Plaintiffs assert only that "[t]he arbitrary and capricious nature of whom to RIF left open the possibility for large numbers of union activists to be RIFed" because the TSA had previously disciplined

screeners for union activities, and the first phase of the RIF incorporated a conduct checklist which documented on-the-job conduct. Pls.' Mem. for Prelim. Inj. at 15 (emphasis added); Whitford Decl. ¶¶ 11, 20, 22, 25. Yet Plaintiffs have only alleged, in their Complaint that a single Plaintiff 0907 Plaintiff Card 0907 had any documented disciplinary incidents related to union activities which could have been incorporated into his conduct checklist, and hence into TSA's decision to select him for the RIF. Nowhere do Plaintiffs allege that Defendant specially selected union members for the RIF, or applied to union activists any termination procedure apart from that 97 described by Defendant.[11] In other words, Plaintiffs fail to allege any causal *97 connection between union activities and termination through the RIF other than the route of disciplinary action 0907 conduct checklist 0907 RIF except for Plaintiff Card. Compare AFGE, AFL-CIO v. Loy, 332 F.Supp.2d 218, 230 (D.D.C.2004) ("the plaintiffs maintain that [plaintiff] Ferace's attempts to organize a labor union are causally connected to his termination.").
As such, with the exception of Plaintiff Card, Plaintiffs have failed to state a claim under the First Amendment because they fail to allege that their union activity was a substantial motivating factor in prompting their selection for the RIF. Count VI of Plaintiffs' Complaint is therefore dismissed with respect to all Plaintiffs except Plaintiff Card and AFGE.[12]
H. Plaintiffs Have Failed to State a Claim Under the Fifth Amendment, Because They Fail to Allege that the TSA Press Release Allegedly Stigmatizing RIFed Screeners for Poor Job Performance Seriously Hampered or Precluded Them From Pursuing Their Chosen Profession (Count VII)
In Count VII, Plaintiffs claim that "[t]he RIF standard as applied abrogates Plaintiffs' due process and liberty interests under the Fifth Amendment of the U.S. Constitution" because "the Defendant has advertised through its press releases it selected employees for the RIF based on prior disciplinary incidents or for poor job performance," and Plaintiffs had no opportunity to contest the conduct checklist upon which their termination was partially based. See Compl. ¶¶ 52-55 (Count VII-5th amend.).
A claim of deprivation of liberty under the Fifth Amendment may arise when the government imposes upon a terminated employee a stigma or other disability so severe that it forecloses the employee's freedom to take advantage of other employment opportunities within his chosen profession. See O'Donnell v. Barry, 148 F.3d 1126, 1140 (D.C.Cir.1998) (finding isolated defamatory statements and a demotion insufficient to prove a disabling stigma); Orange v. District of Columbia, 59 F.3d 1267, 1274 (D.C.Cir.1995) (finding a university did not violate administrators' First Amendment rights, because university report did not foreclose government employment opportunities); Kartseva v. Department of State, 37 F.3d 1524, 1527-28 (D.C.Cir.1994) (finding translator's disqualification from government employment for unknown but potentially serious reasons sufficiently stigmatic to render her unemployable in much of her field). The. Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) made clear that "defamation alone is not actionable under the due process clause, but that defamation `in the course of the termination of employment' is" actionable. O'Donnell, 148 F.3d at 1140 (quoting Paul, 424 U.S. at 710, 96 S.Ct. 1155). The purpose of requiring a demotion or firing is to help "limit the scope of permissible due 98 process *98 claims to a small set of truly serious claims, thus limiting the constitutionalization of tort law." Id. To constrain a liberty interest, the stigma must not be merely unwelcome, but must seriously hamper or "foreclose H opportunities for future" employment. Orange, 59 F.3d at 1274.
In this case, Plaintiffs have failed to allege that any stigma created by TSA was sufficiently serious to constrain their liberty interest. Plaintiffs allege that a TSA press release of May 30, 2003 that reassured the public that the screener job cuts would have no impact on security or passenger wait times also stigmatized the RIFed employees. Compl., Ex. 4 (5/30/03 TSA Press Release). The press release stated that:
Security continues at the same high level and passenger wait times remain low even as the Transportation Security Administration implements its plan for rightsizing the screener work force publicly announced by TSA Administrator Mm. James M. Loy on April 30.
The rightsizing effort, which started in March, has reduced 3,000 positions from the TSA rolls . . . The plan, driven in part by budget constraints, called for eliminating 3,000 positions by May 31 and another 3,000 by Sept. 30.

"By ensuring that security checkpoints are fully staffed during peak times we have been able to make staffing adjustments that largely have gone unnoticed by travelers," Admiral Loy said.
* * * * * *
"We are staying sharply focused on security as we make these changes," Admiral Loy said. "When we are done, the public will have a leaner, more effective screener work force, comprised of the best people for the jobs."
Whenever possible, normal attrition, including resignations and retirements, is being used for rightsizing at individual airports. Employees may be terminated for cause, including criminal background, failure to pass drug and alcohol tests, and falsification of employment documents. Beyond that, the actual reductions in force are based on job performance.
Compl., Ex. 4 (5/30/03 TSA Press Release).
Upon examination of this allegedly stigmatizing public statement, it is clear for several reasons that the alleged stigma is not serious enough to deprive Plaintiffs of a liberty interest in pursuing their chosen profession. First, nowhere have Plaintiffs alleged that this Press Release has foreclosed or seriously hampered their opportunities for future employment. Indeed, the text of the Press Release cannot support such an inference. While it mentions job performance as a criterion in selecting employees for the reduction in force, the Press Release states that "[w]henever possible, normal attrition, including resignations and retirements, is being used for rightsizing at" airports. It also states that the reductions are driven in part by "budget constraints." Moreover, all Plaintiffs received separation letters stating that their particular terminations were "as a result of overstaffing resulting from budget allocations and `not for cause.'" Compl. ¶ 30. Plaintiffs fail to suggest how these letters would be insufficient to demonstrate to future potential employers that poor performance was not a factor in their selection for the RIF. In fact, Plaintiffs' most serious allegation about the impact of the Press Release on Plaintiffs is that "Plaintiff Leimer's reputation has also been tarnished in his community. As the RIF in Syracuse occurred at the same time as the press was reporting that Defendant was terminating screeners for criminal backgrounds, his neighbors wrongfully believed that he was terminated for cause." Pls.' Mem. for Prelim. Inj. at 16. Under the 99 above-articulated standards for establishing a claim of deprivation *99 of liberty based on stigmatizing public statements, this claim is woefully insufficient.
Finally, the Press Release does not name any individual Plaintiffs. No cases cited by Plaintiffs or reviewed by this Court have involved public statements impugning an unnamed class of discharged employees; rather, all cases have involved public statements impugning specific named employees. The stigmatizing public statements in these cases were of such gravity that the employee was seriously hampered or precluded from pursuing his chosen profession. See, e.g., Kartseva, 37 F.3d 1524. In fact, in all cases cited above apart from Kartseva, public statements far more defamatory than those at issue here were found for various reasons not to deprive plaintiffs of a liberty interest. While on a Motion to Dismiss all reasonable inferences from factual allegations in the Complaint should be drawn in favor of Plaintiffs, an inference that all or any of the RIFed TSA airport security screeners were seriously hampered or "foreclose[d] [from] opportunities for future" employment in the security field due to the allegedly stigmatizing TSA Press Release is simply not reasonable. Orange, 59 F.3d at 1274.
In short, to state a claim of deprivation of liberty to pursue one's chosen profession in violation of the Fifth Amendment, Plaintiffs must allege that a public statement by the government accompanying their discharge was so severe as to preclude or seriously hamper them from obtaining future employment in their chosen field. Plaintiffs fail to allege that the May 30, 2003 TSA Press Release stigmatized them so severely that it precluded or seriously hampered them from obtaining future employment, and upon examination the Release does not support such an inference. Count VII of Plaintiffs' Complaint is therefore dismissed.

IV: CONCLUSION
For the reasons set forth above, the Court shall grant Defendant's Motion to Dismiss all Plaintiffs' claims except Count VI with respect to Plaintiff Card and Plaintiff AFGE. An appropriate Order accompanies this Memorandum Opinion.
ORDER
For the reasons set forth in the accompanying Memorandum Opinion, it is, this 21st day of August, 2006, hereby
ORDERED that [10] Defendant's Motion to Dismiss is GRANTED IN PART and DENIED IN PART; it is also
ORDERED that all of Plaintiffs' claims except for Count VI with respect to Plaintiff Card and Plaintiff AFGE are DISMISSED; it is also
ORDERED that Plaintiffs' [15] Motion for Certification of Class is DENIED WITHOUT PREJUDICE; it is also
ORDERED that the remaining Parties are to file a Joint Status Report by September 22, 2006, indicating how they wish to proceed.
[1] Formerly James Loy. Edmund Hawley was automatically substituted pursuant to Federal Rule of Civil Procedure 25(d).
[2] Hereinafter "Under Secretary," in keeping with the terminology of the original ATSA. The title of the head of the TSA changed from Under Secretary to Administrator when the TSA merged into the Department of Homeland Security in November 2002.
[3] With the exception of the AFGE.
[4] As used in this Opinion, the term "federal personnel laws" refers specifically to federal laws governing terms and conditions of employment for federal civil servants. As used in this Opinion, "federal personnel laws" does not encompass federal employment laws, such as the Age Discrimination in Employment Act (ADEA), that apply generally to federal and private sector employees alike.
[5] Except as otherwise noted, the source of these facts is the thorough compilation of legislative history of ATSA §§ 111(d) and 101 in In re TSA and AFGE, No. WA-RP-03-0023 (F.L.R.A. July 7, 2003).
[6] The "right-sizing" plan is also known as a Reduction In Force, or "RIF."
[7] Plaintiffs' exhibits are in fact attached to their Motion for Preliminary Injunction, and not the Complaint, but for convenience were not resubmitted to the Court.
[8] In Whitman v. Department of Transportation, 0907 U.S. ,0907 126 S.Ct. 2014, 164 L.Ed.2d 771 (2006), the Supreme Court addressed a question tangentially related to the current action: whether federal courts have jurisdiction to hear claims by federal employees covered by the Civil Service Reform Act (CSRA), including Chapter 71 of Title 5, 49 U.S.C. § 40122(g). In this case, because the Court finds that ATSA allows the TSA Under Secretary to exempt TSA security screeners from the CSRA, and the Under Secretary in fact exempted them, the jurisdictional exclusions in the CSRA do not apply.
In National Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C.Cir.2006), the Court of Appeals for the D.C. Circuit construed the Homeland Security Act's ("HSA") mandate that the Department of Homeland Security must ensure collective bargaining for its employees. The question of whether the TSA, now a part of DHS, must ensure collective bargaining for TSA security screeners is not before this Court. The Court only notes that the question was decided in In re TSA and AFGE, No. WA-RP-03-0023 at 19-28 (F.L.R.A. July 7, 2003). That tribunal decided that the HSA did not alter the effect of ATSA § 111(d).

[9] As in Springs v. Stone, "[b]oth parties devote discussion in their memoranda to the implications of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) on this case. Defendant contends that the TSA Under Secretary's interpretation of ATSA § 111(d) should be accorded Chevron deference. Plaintiff, obviously, argues otherwise." 362 F.Supp.2d at 697 n. 8. As in Springs, "Chevron has no bearing on the resolution of [Defendant's] Motion," because "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress" as determined employing traditional tools of "statutory construction, including a statute's legislative history. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Am. Fed'n of Labor & Congress of Indus. Orgs. v. Fed. Election Comm'n, 333 F.3d 168, 172 (D.C.Cir.2003); Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 643 (D.C.Cir.2000); Am. Bankers Ass'n v. Nat'l Credit Union Admin., 38 F.Supp.2d 114, 134 (D.D.C.1999).
[10] Plaintiffs have not specified the statute authorizing them to sue the TSA for the alleged violation of ATSA § 110(c). See Compl. ¶ 48 ("Defendant violated ATSA in that it did not deploy within the year requirement a sufficient number of Federal screeners' to conduct the screening of all passengers."). The Court can only assume that Plaintiffs seek review of the TSA's alleged violation of this provision under the APA; the prospect that Congress intended to create a private cause of action for a violation of ATSA § 110(c)(1) does not warrant a discussion. See Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ("[P]rivate rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.").
[11] In their pleadings opposing Defendant's Motion to Dismiss, the extent of Plaintiffs' discussion of their 1st Amendment claim is the following: "TSA's RIF standard as applied violates Plaintiffs' First Amendment rights. The First Amendment . . . guarantee[s] a government employee the right to [unionize]. In fact, the Supreme Court has characterized the right to organize and select representatives for lawful purposes of collective bargaining . . . as a fundamental right. . . .' When the Defendant used unlawful RIF standards, he violated the Plaintiffs' constitutional and fundamental right to organize collectively and placed an undue and improper chilling effect on their right to engage in associational activities." Pls.' Opp'n at 19 (citations omitted).
[12] Defendant's Memorandum in support of its Motion to Dismiss focuses on individual Plaintiffs, only very briefly arguing in a footnote in the context of Plaintiffs' ADEA claim that "[i]t is particularly unlikely that AFGE has associational standing to pursue this claim" because "the suit ultimately will require individualized proof concerning the specific action(s) taken against each employee." Def.'s Mem. to Dismiss at 22-23 n. 15. See AFGE v. Stone, 2005 WL 1620402 at *6-7 (S.D.Ohio July 6, 2005) (finding AFGE lacked standing to join union member's First Amendment claim for wrongful termination). As such, the Court shall allow AFGE to proceed along with Plaintiff Card on Plaintiff Card's First Amendment claim for the time being.
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 Case: 1:03-cv-1719 As of: 10/11/2012 10:51 AM EDT 1 of 4
CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:03−cv−01719−CKK

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1 et al v. LOY Assigned to: Judge Colleen Kollar−Kotelly Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 08/13/2003 Date Terminated: 10/17/2006 Jury Demand: None Nature of Suit: 790 Labor: Other Jurisdiction: U.S. Government Defendant

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1

represented by Gony Frieder Goldberg AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES 80 F Street, NW Washington, DC 20001 (202) 639−6434 Fax: (202) 639−6441 Email: friedg@afge.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff EUGENE LEIMER

represented by Gony Frieder Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff DON CARD

represented by Gony Frieder Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff BEATRICE CAMPBELL

represented by Gony Frieder Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff THOMAS MORIARTY

represented by Gony Frieder Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JONATHAN THORTON

represented by Gony Frieder Goldberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
JAMES M. LOY In his official capacity as Administrator, Transportation Security Administration

represented by Susan Marie Demske U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL

Case: 1:03-cv-1719 As of: 10/11/2012 10:51 AM EDT 2 of 4
PROGRAMS BRANCH P.O. Box 883 Washington, DC 20044 (202) 514−9836 Fax: (202) 616−8202 Email: susan.demske@usdoj.gov TERMINATED: 11/06/2003 ATTORNEY TO BE NOTICED
Samuel C. Kaplan OFFICE OF THE ATTORNEY GENERAL − DISTRICT OF COLUMBIA 441 Fourth Street, NW Suite 600S Washington, DC 20001 (202) 724−7272 Email: samuel.kaplan@dc.gov ATTORNEY TO BE NOTICED

Date Filed 08/13/2003 08/13/2003 08/14/2003
08/15/2003 08/15/2003 08/21/2003 08/25/2003 08/26/2003 08/27/2003

# Docket Text
1 COMPLAINT against JAMES M. LOY (Filing fee $ 150.) , filed by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON.(td, ) (Entered: 08/15/2003)
2 MOTION for Temporary Restraining Order by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON. (Attachments: # 1 Exhibit 1 through 20)(td, ) (Entered: 08/15/2003)
3 ERRATA to plaintiffs' memorandum in support of their Motion for Temporary Restraining Order by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON. (nmw, ) (Entered: 08/15/2003)
4 NOTICE of Appearance by Susan Marie Demske on behalf of JAMES M. LOY (Demske, Susan) (Entered: 08/15/2003)
5 Joint MOTION that the Court consider Plaintiffs' Motion for a Temporary Restraining Order and supporting Memorandum as a Motion for Preliminary Injunction; also Proposed Scheduling Order by JAMES M. LOY. (Demske, Susan) (Entered: 08/15/2003)
6 ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar−Kotelly, signed by Judge Kollar−Kotelly on August 21, 2003. (SM) (Entered: 08/21/2003)
7 Memorandum in opposition to motion re 2 Plaintiffs' Motion for a Preliminary Injunction filed by JAMES M. LOY. (Attachments: # 1 Affidavit of Richard A. Whitford with attached exhibits# 2 Exhibit TSA and AFGE, Decision &Order on Petitions (FLRA Reg'l Dir. July 7, 2003))(Demske, Susan) (Entered: 08/25/2003)
8 NOTICE by JAMES M. LOY re 7 Memorandum in Opposition, of Filing of Substitute Exhibit and Errata (Attachments: # 1 Exhibit (Substitute) Tab E to Attachment 1 to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction)(Demske, Susan) (Entered: 08/26/2003)
9 REPLY to opposition to motion re 2 Preliminary Injunction filed by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON. (Attachments: # 1 Exhibit)(Frieder, Gony) (Entered: 08/27/2003)

Case: 1:03-cv-1719 As of: 10/11/2012 10:51 AM EDT 3 of 4

10/14/2003 10/27/2003 11/03/2003 11/06/2003 11/06/2003 11/10/2003
11/21/2003 11/21/2003 07/12/2004
01/22/2006
01/27/2006 02/03/2006 08/21/2006
08/21/2006 08/29/2006

10 MOTION to Dismiss Plaintiffs' Complaint and Memorandum In Support by JAMES M. LOY. (Demske, Susan) (Entered: 10/14/2003)
11 Memorandum in opposition to motion re 10 Defendant's Motion to Dismiss filed by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON. (Frieder, Gony) (Entered: 10/27/2003)
12 ORDER granting Motion to Consider Plaintiffs' Motion for Temporary Restraining Order as Motion for Preliminary Injunction 5 , and denying Motion for Preliminary Injunction 2 . Signed by Judge Colleen Kollar−Kotelly on November 3, 2003. (Attachments: # 1) (lcckk1) (Entered: 11/03/2003)
13 REPLY in support of motion re 10 to Dismiss Plaintiffs' Complaint filed by JAMES M. LOY. (Demske, Susan) (Entered: 11/06/2003)
14 NOTICE by JAMES M. LOY of Withdrawal of Susan Demske as Counsel for Defendant (Demske, Susan) (Entered: 11/06/2003)
15 First MOTION to Certify Class by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON. (Attachments: # 1 Text of Proposed Order Proposed Order)(Frieder, Gony) (Entered: 11/10/2003)
16 NOTICE of Appearance by Samuel C. Kaplan on behalf of JAMES M. LOY (Kaplan, Samuel) (Entered: 11/21/2003)
17 MOTION to Stay Proceedings Concerning Plaintiffs' Motion for Class Certification Pending Resolution of Defendant's Dispositive Motion, or, in the Alternative, for a Continuance by JAMES M. LOY. (Attachments: # 1 Exhibit One# 2 Exhibit Two)(Kaplan, Samuel) (Entered: 11/21/2003)
MINUTE ENTRY: ORDERED that Defendants' 17 Motion to Stay proceedings concerning Plaintiffs' class certification motion is GRANTED. If Defendant's Motion to Dismiss is not granted in full, Defendant shall have 30 days from the date of this Court's ruling on the dispositive motion to respond to Plaintiffs' class certification motion. Signed by Judge Colleen Kollar−Kotelly on July 12, 2004.(lcckk1) (Entered: 07/12/2004)
MINUTE ORDER (Paperless): The Parties are instructed to notify the Court as to the pending Motion to Dismiss if there is any new factual information or case law pertinent to the filed motion via a joint status report to be submitted to the Court by January 27, 2006. Additionally, because an APA claim was made in the instant case, the relevant administrative record should be filed with the Court by January 27, 2006. Signed by Judge Colleen Kollar−Kotelly on January 22, 2006. (lcckk1) (Entered: 01/22/2006)
18 STATUS REPORT Jointly Filed by Parties by THOMAS MORIARTY, JONATHAN THORTON, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, EUGENE LEIMER, DON CARD, BEATRICE CAMPBELL. (Frieder, Gony) (Entered: 01/27/2006)
19 NOTICE of Defendant's Supplement to Joint Status Report by JAMES M. LOY re 18 Status Report (Kaplan, Samuel) (Entered: 02/03/2006)
20 ORDER granting in part and denying in part Defendant's 10 Motion to Dismiss; dismissing all of Plaintiffs' claims except for Count VI with respect to Plaintiff Card and Plaintiff AFGE; denying without prejudice Plaintiffs' 15 Motion for Class Certification; and ordering the Parties to file a Joint Status Report by September 22, 2006, indicating how they wish to proceed. Signed by Judge Colleen Kollar−Kotelly on August 21, 2006. (lcckk1) (Entered: 08/21/2006)
21 MEMORANDUM OPINION. Signed by Judge Colleen Kollar−Kotelly on August 21, 2006. (lcckk1). (Entered: 08/21/2006)
22 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint by JAMES M. LOY. (Kaplan, Samuel) (Entered: 08/29/2006)

Case: 1:03-cv-1719 As of: 10/11/2012 10:51 AM EDT 4 of 4

09/01/2006 09/21/2006 10/03/2006
10/04/2006 10/17/2006 10/17/2006 11/02/2006 11/07/2006

MINUTE ENTRY ORDER (Paperless) granting 22 Unopposed Motion to Extend Time to Answer or Otherwise Respond to Complaint, until and including October 4, 2006. Signed by Judge Colleen Kollar−Kotelly on September 1, 2006. (SM) (Entered: 09/01/2006)
23 STATUS REPORT Jointly Filed by Parties by THOMAS MORIARTY, JONATHAN THORTON, JAMES M. LOY, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, EUGENE LEIMER, DON CARD, BEATRICE CAMPBELL. (Frieder, Gony) (Entered: 09/21/2006)
MINUTE ENTRY ORDER (paperless) adopting the schedule set out in the 23 Joint Status Report filed on September 21, 2006. Defendant's Motion to Transfer Venue shall be filed by October 4, 2006, if not filed, defendant will file an Answer with scheduling order by October 25, 2006; any response to Motion to Transfer Venue shall be filed by October 11, 2006; and any Reply shall be filed by October 25, 2006. Signed by Judge Colleen Kollar−Kotelly on October 3, 2006. (SM) (Entered: 10/03/2006)
24 MOTION to Transfer Case by JAMES M. LOY. (Attachments: # 1 Exhibit 1 − Slip Opinion in American Federation of Government Employees, AFL−CIO v. Loy, No. 03−cv−01935# 2 Exhibit 2 − Declaration of Maria Farrell)(Kaplan, Samuel) (Entered: 10/04/2006)
25 ORDER granting as conceded and on the merits 24 Motion to Transfer Case to the Northern District of New York. Signed by Judge Colleen Kollar−Kotelly on October 17, 2006. (lcckk1) (Entered: 10/17/2006)
26 MEMORANDUM OPINION. Signed by Judge Colleen Kollar−Kotelly on October 17, 2006. (lcckk1). (Entered: 10/17/2006)
Case transferred to District of USDC for the Northern District of New York (Syracuse) pursuant to order filed 10/17/06. Sent electronically. (td, ) (Entered: 11/02/2006)
Receipt on 11/07/06 of Transfer Papers. Other Court Number 5:06−cv−1338−NAM−GHL sent by U.S.D.C. for the Northern District of New York. (td, ) (Entered: 11/07/2006)

 
 Case: 5:06-cv-01338-NAM-GHL As of: 07/17/2010 08:14 PM EDT 1 of 5
CLOSED
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 4.0.3]
(Syracuse) CIVIL DOCKET FOR CASE #: 5:06−cv−01338−NAM−GHL

American Federation of Government Employees TSA Local 1 et Date Filed: 11/02/2006

al v. Hawley

Date Terminated: 12/06/2007

Assigned to: Chief Judge Norman A. Mordue

Jury Demand: None

Referred to: Magistrate Judge George H. Lowe

Nature of Suit: 790 Labor: Other

Case in other court:

USDC District of Columbia

Jurisdiction: Federal Question

(Washington D.C.), 1:03−cv−1719

− CKK

Cause: 28:1331 Fed. Question

Plaintiff

American Federation of Government Employees TSA Local 1

represented by Matthew Bergeron Satter, Andrews Law Firm 217 South Salina Street 6th Floor Syracuse, NY 13202 315−471−0405 Fax: 315−471−7849 Email: mbergeron@satterandrews.com ATTORNEY TO BE NOTICED

Plaintiff Don Card

represented by Matthew Bergeron (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Edmund Hawley In his official capacity as Administrator, Transportation Security Administration

represented by William F. Larkin Office of the United States Attorney − Syracuse 100 South Clinton Street Syracuse, NY 13261−7198 315−448−0672 Fax: 315−448−0646 Email: william.larkin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/02/2006
11/02/2006

# Docket Text
1 COMPLAINT from the USDC District of Columbia Washington, D.C. case number 1:03−cv−1719 transfered in. Filed by American Federation of Government Employees TSA Local 1, Eugene Leimer, Don Card, Beatrice Campbell, Thomas Moriarty, Jonathan Thorton. Order forwarded electronically.(alh) (Entered: 11/03/2006)
2 MOTION for Temporary Restraining Order by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON. (Attachments: # 1 Exhibits 1 through 5 # 2 Exhibits 5 through 20) (Filed in USDC District of Columbia on 8/13/03) (alh, ) (Entered: 11/03/2006)

Case: 5:06-cv-01338-NAM-GHL As of: 07/17/2010 08:14 PM EDT 2 of 5

11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006 11/02/2006

3 ERRATA to plaintiffs' memorandum in support of their Motion for Temporary Restraining Order by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON (Filed in USDC District of Columbia on 8/14/03) (alh, ) (Entered: 11/03/2006)
4 NOTICE of Appearance by Susan Marie Demske on behalf of JAMES M. LOY. (Filed in USDC District of Columbia on 8/15/03) (alh, ) (Entered: 11/03/2006)
5 Joint MOTION that the Court consider Plaintiffs' Motion for a Temporary Restraining Order and supporting Memorandum as a Motion for Preliminary Injunction; also Proposed Scheduling Order by JAMES M. LOY. (Filed in USDC District of Columbia on 8/15/03) (alh, ) (Entered: 11/03/2006)
6 ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar−Kotelly, signed by Judge Kollar−Kotelly on August 21, 2003. (Filed in USDC District of Columbia on 8/21/03) (alh, ) (Entered: 11/03/2006)
7 MEMORANDUM in opposition to motion re 2 Plaintiffs' Motion for a Preliminary Injunction filed by James M. Loy. (Attachments: # 1 Affidavit of Richard A. Whitford with attached exhibits # 2 Exhibit TSA and AFGE, Decision &Order on Petitions (FLRA Reg'l Dir. July 7, 2003)) (Filed in USDC District of Columbia on 8/25/03)(alh, ) (Entered: 11/03/2006)
8 NOTICE by James M. Loy re 7 Memorandum in Opposition, of Filing of Substitute Exhibit and Errata (Attachments: # 1 Exhibit (Substitute) Tab E to Attachment 1 to Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction)(Filed in the USDC District of Columbia on 8/26/03) (alh, ). (Entered: 11/06/2006)
9 REPLY to opposition to motion re 2 Preliminary Injunction filed by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON (Attachments: # 1 Exhibit) (Filed in USDC District of Columbia on 8/27/03)(alh, ) (Entered: 11/06/2006)
10 MOTION to Dismiss Plaintiffs' Complaint and Memorandum in Support by JAMES M. LOY. (Filed in USDC District of Columbia 10/14/03) (alh, ) (Entered: 11/06/2006)
11 Memorandum in opposition to motion re 10 Defenant's Motion to Dismiss filed by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON (Filed in USDC District of Columbia on 10/27/03). (alh, ) (Entered: 11/06/2006)
12 ORDER granting Motion to Consider Plaintiffs' Motion for Temporary Restraining Order as Motion for Preliminary Injunction 5 , and denying Motion for Preliminary Injunction 2 . Signed by Judge Colleen Kollar−Kotelly on November 3, 2003. (Attachments: # 1) (Filed in USDC District of Columbia on 11/3/03).(alh, ) (Entered: 11/06/2006)
13 REPLY in support of motion re 10 to Dismiss Plaintiffs' Complaint filed by JAMES M. LOY (Filed in USDC District of Columbia on 11/6/03). (alh, ) (Entered: 11/06/2006)
14 NOTICE by JAMES M. LOY of Withdrawal of Susan Demske as Counsel for Defendant. (Filed in USDC District of Columbia on 11/6/03) (alh, ) (Entered: 11/06/2006)
15 First MOTION to Certify Class by AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, BEATRICE CAMPBELL, DON CARD, EUGENE LEIMER, THOMAS MORIARTY, JONATHAN THORTON, (Attachments: # 1 Text of Proposed Order Proposed Order) (Filed in USDC District of Columbia on 11/10/03).(alh, ) (Entered: 11/06/2006)
16 NOTICE of Appearance by Samuel C. Kaplan on behalf of JAMES M. LOY (Filed in USDC District of Columbia on 11/21/03).(alh) (Entered: 11/06/2006)

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17 MOTION to Stay Proceedings Concerning Plaintiffs' Motion for Class Certification Pending Resolution of Defendant's Dispositive Motion, or, in the Alternative, for a Continuance by JAMES M. LOY. (Attachments: # 1 Exhibit One# 2 Exhibit Two) (Filed in USDC District of Columbia on 11/21/03)(alh, ) (Entered: 11/06/2006)
MINUTE ENTRY: ORDERED that Defendants' 17 Motion to Stay proceedings concerning Plaintiffs' class certification motion is GRANTED. If Defendant's Motion to Dismiss is not granted in full, Defendant shall have 30 days from the date of this Court's ruling on the dispositive motion to respond to Plaintiffs' class certification motion. Signed by Judge Colleen Kollar−Kotelly on July 12, 2004. (Filed in USDC District of Columbia on 7/12/04) (alh, ) (Entered: 11/06/2006)
MINUTE ORDER (Paperless): The Parties are instructed to notify the Court as to the pending Motion to Dismiss if there is any new factual information or case law pertinent to the filed motion via a joint status report to be submitted to the Court by January 27, 2006. Additionally, because an APA claim was made in the instant case, the relevant administrative record should be filed with the Court by January 27, 2006. Signed by Judge Colleen Kollar−Kotelly on January 22, 2006. (Filed in USDC District of Columbia on 1/22/06)(alh, ) (Entered: 11/06/2006)
18 STATUS REPORT Jointly Filed by Parties by THOMAS MORIARTY, JONATHAN THORTON, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, EUGENE LEIMER, DON CARD, BEATRICE CAMPBELL. (Filed in USDC District of Columbia on 1/27/06). (alh, ) (Entered: 11/06/2006)
19 NOTICE of Defendant's Supplement to Joint Status Report by James M. Loy re 18 Status Report. (Filed in USDC District of Columbia on 2/3/06). (alh, ) (Entered: 11/06/2006)
20 ORDER granting in part and denying in part Defendant's 10 Motion to Dismiss; dismissing all of Plaintiffs' claims except for Count VI with respect to Plaintiff Card and Plaintiff AFGE; denying without prejudice Plaintiffs' 15 Motion for Class Certification; and ordering the Parties to file a Joint Status Report by September 22, 2006, indicating how they wish to proceed. Signed by Judge Colleen Kollar−Kotelly on August 21, 2006. (Filed in USDC District of Columbia on 8/21/06)(alh, ) (Entered: 11/06/2006)
21 MEMORANDUM OPINION. Signed by Judge Colleen Kollar−Kotelly on August 21, 2006. (Filed in USDC District of Columbia on 8/21/06) (alh, ) (Entered: 11/06/2006)
22 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint by JAMES M. LOY. (Filed in USDC District of Columbia on 8/29/06) (alh, ) (Entered: 11/06/2006)
MINUTE ENTRY ORDER (Paperless) granting 22 Unopposed Motion to Extend Time to Answer or Otherwise Respond to Complaint, until and including October 4, 2006. Signed by Judge Colleen Kollar−Kotelly on September 1, 2006. (Filed in USDC District of Columbia on 9/1/06)(alh, ) (Entered: 11/06/2006)
23 STATUS REPORT Jointly Filed by Parties by THOMAS MORIARTY, JONATHAN THORTON, JAMES M. LOY, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES TSA LOCAL 1, EUGENE LEIMER, DON CARD, BEATRICE CAMPBELL. (Filed in USDC District of Columbia on 9/21/06). (alh, ) (Entered: 11/06/2006)
MINUTE ENTRY ORDER (paperless) adopting the schedule set out in the 23 Joint Status Report filed on September 21, 2006. Defendant's Motion to Transfer Venue shall be filed by October 4, 2006, if not filed, defendant will file an Answer with scheduling order by October 25, 2006; any response to Motion to Transfer Venue shall be filed by October 11, 2006; and any Reply shall be filed by October 25, 2006. Signed by Judge Colleen Kollar−Kotelly on October 3, 2006. (Filed in USDC District of Columbia on 10/3/06) (alh, ) (Entered: 11/06/2006)
24 MOTION to Transfer Case by JAMES M. LOY (Attachments: # 1 Slip Opinion in American Federation of Government Employees, AFL−CIO v. LOY, No.

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03−cv−01935# 2 Declaration of Maria Farrell) (Filed in USDC District of Columbia on 10/4/06)(alh, ) (Entered: 11/06/2006)
25 ORDER granting as conceded and on the merits 24 Motion to Transfer Case to the Northern District of New York. Signed by Judge Colleen Kollar−Kotelly on October 17, 2006. (Filed in USDC District of Columbia on 10/17/06)(alh, ) (Entered: 11/06/2006)
26 MEMORANDUM OPINION. Signed by Judge Colleen Kollar−Kotelly on October 17, 2006. (Filed in USDC District of Columbia on 10/17/06) (alh, ) (Entered: 11/06/2006)
27 DOCKET REPORT from the US District Court District of Columbia Case No. 1:03−cv−1719. (alh, ) (Entered: 11/06/2006)
28 DEFENDANT'S ANSWER to Complaint by James M. Loy.(Larkin, William) (Entered: 12/07/2006)
29 DEFENDANT'S "CORRECTED" ANSWER to Complaint by James M. Loy.(Larkin, William) (Entered: 12/07/2006)
30 NOTICE of Appearance by Matthew Bergeron on behalf of American Federation of Government Employees TSA Local 1, Don Card (Bergeron, Matthew) (Entered: 01/05/2007)
31 STATUS REPORT Letter by James M. Loy. (Attachments: # 1 Affidavit Certificate of Service)(Larkin, William) (Entered: 01/10/2007)
32 G.O. 25 FILING ORDER ISSUED: Initial Telephone Conference set for 3/21/2007 09:00 AM before Magistrate Judge George H. Lowe. Civil Case Management Plan due by 3/12/2007. (mnm) (Entered: 01/12/2007)
33 CIVIL CASE MANAGEMENT PLAN (joint filing) by American Federation of Government Employees TSA Local 1, Don Card, James M. Loy. (Larkin, William) (Entered: 03/13/2007)
Minute Entry for proceedings held before Judge George H. Lowe : Initial Pretrial Telephone Conference held on 3/21/2007. Appearances: Matthew Bergeron, Esq., for Plaintiffs; AUSA William A. Larkin, Esq., for Defendant. Upon consent of the parties, Judge Lowe orders the caption of this case amended read American Federation of Government Employees TSA Local 1, and Don Card, vs. Edmund Hawley, in his official capacity as Administrator, Transportation Security Administration. Pretrial deadlines are set and a scheduling order will be issued. (Tape #89) (tjm) Modified on 3/21/2007 to correct name of new defendant (tjm). (Entered: 03/21/2007)
CLERK'S CORRECTION OF DOCKET ENTRY re Pretrial Conference − Initial: Caption should read American Federation of Government Employees TSA Local 1, and Don Card vs. Edmund Hawley, in his official capacity as Administrator, Transportation Security Administration. (Minute entry erroneously named Defendant as Edward Hawley). (tjm) (Entered: 03/21/2007)
34 UNIFORM PRETRIAL SCHEDULING ORDER: Anticipated length of trial: 3 days. Preferred Trial Location: Syracuse, New York. This case has been opted out of participation in the ADR program. Joinder of Parties due by 4/20/2007. Amended Pleadings due by 4/20/2007. Discovery due by 8/28/2007. Motions to be filed by 10/29/2007. Non−Jury Trial Ready Deadline is 12/31/2007. Signed by Judge George H. Lowe on 3/21/07. (jmb) (Entered: 03/22/2007)
35 Letter Motion from William F. Larkin for Edmund Hawley requesting a discovery dispute conference submitted to Judge George H. Lowe. (Attachments: # 1 Affidavit Certificate of Service)(Larkin, William) (Entered: 07/27/2007)
36 STATUS REPORT and Request to Extend Time Periods to Complete Discovery and File Motions by Edmund Hawley. (Attachments: # 1 Certificate of Service)(Larkin, William) (Entered: 09/05/2007)

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37 RESPONSE TO LETTER BRIEF filed by American Federation of Government Employees TSA Local 1, Don Card as to 36 Status Report filed by Edmund Hawley. (Bergeron, Matthew) (Entered: 09/06/2007)
38 AMENDED UNIFORM PRETRIAL SCHEDULING ORDER: Discovery due by 11/5/2007. Motions to be filed by 1/7/2008. Trial Ready Deadline is 3/7/2008. Signed by Judge George H. Lowe on 9/10/07. (dmf) (Entered: 09/10/2007)
39 STIPULATION of Dismissal by American Federation of Government Employees TSA Local 1, Don Card submitted to Judge Mordue. (Bergeron, Matthew) (Entered: 11/30/2007)
40 ORDER approving 39 Stipulation of Dismissal filed by Don Card, American Federation of Government Employees TSA Local 1, and DISMISSING CASE. Signed by Judge Norman A. Mordue on 12/6/07. (lmp) (Entered: 12/06/2007)