16-1680-cv 

Connors v. United States of America et al. 

1 

In the 

United States Court of Appeals 

for the 

Second Circuit 

August Term, 2016 

Submitted January 10, 2017 

Decided July 13, 2017 

Docket No. 16-1680-cv 

MELANIE CONNORS, 

Plaintiff-Appellant, 

v. 

THE UNITED STATES OF AMERICA

and 

JOHN F. KELLY,* Secretary, United States 

Department of Homeland Security, 

Defendants-Appellees. 

Before: 

HALL, DRONEY, Circuit Judges, OETKEN, District Judge.†

 

* Pursuant to Fed. R. App. P. 43(c)(2), John F. Kelly is automatically substituted for 

Jeh Charles Johnson in his official capacity as the Secretary of the United States 

Department of Homeland Security. The Clerk is respectfully directed to amend the 

caption of this matter accordingly. 

† Judge J. Paul Oetken, United States District Court for the Southern District of New 

York, sitting by designation. 
16-1680-cv 

Connors v. United States of America et al. 

2 

Appeal from a judgment of the United States District Court for the 

Eastern District of New York (Vitaliano, J.) dismissing for lack of 

subject matter jurisdiction a complaint seeking judicial review under 

the Administrative Procedure Act, 5 U.S.C. § 702, of the employment 

termination of a screening officer employed by the Transportation 

Security Administration (“TSA”). 

We hold that the Aviation and Transportation Security Act, 49 

U.S.C. § 44935 note, commits the termination of the employment of 

TSA screeners to the unreviewable discretion of the TSA 

Administrator and that the district court lacks subject matter 

jurisdiction to review termination decisions pursuant to the 

Administrative Procedure Act, 5 U.S.C. § 701(a). 

AFFIRMED. 

William A. Roché, The Law Offices of 

William A. Roché, P.C., Hicksville, New 

York, for Plaintiff-Appellant. 

Varuni Nelson, Rachel G. Balaban, and Dara 

A. Olds, Assistant United States Attorneys, 

of counsel, for Bridget M. Rohde, Acting 

United States Attorney for the Eastern 

District of New York, Brooklyn, New York, 

for Defendants-Appellees.

PER CURIAM: 

In Conyers v. Rossides, 558 F.3d 137, 148 (2d Cir. 2009), cert. 

denied, 133 S. Ct. 329 (2012), we held that Section 111(d) of the 

Aviation Transportation Security Act, 49 U.S.C. § 44935 note 

(“ATSA”), precluded judicial review under the Administrative 

Procedure Act, 5 U.S.C. § 701(a) (“APA”), of a decision by the 

Transportation Security Administration (“TSA”) not to utilize the 

Federal Aviation Administration’s personnel management system in 

deciding whom to employ or appoint as a screening officer. We did not 

hold as a general matter that APA review was unavailable for all 
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Connors v. United States of America et al. 

3 

personnel decisions regarding TSA screening officers. See Conyers, 558 

F.3d at 148. 

The case now before us gives us occasion to extend the holding of 

Conyers to TSA decisions regarding the termination of screening 

officers. For the reasons that follow, we hold that the ATSA precludes 

review under the APA of a TSA decision to terminate a screening 

officer. We therefore affirm the district court’s dismissal of this matter 

for lack of subject matter jurisdiction. 

I. Background 

The following facts are taken from the complaint and its 

attachments, which, on a motion to dismiss, both the district court and 

this Court are obliged to view in the light most favorable to the 

Plaintiff. See id. at 143. 

Plaintiff-Appellant Melanie Connors was employed by the TSA as 

security screening officer, with the title of Expert Behavior Detection 

Officer, at Newark Liberty International Airport. She was also the 

recording secretary of the Association of Transportation Security 

Management and Professionals (“ATSMAP”), a TSA employee 

association. 

In February 2013, several TSA managers received packages 

containing lists of names, addresses, telephone numbers, and email 

addresses of 185 TSA employees, including several federal air 

marshals. The list appeared to have been compiled from ATSMAP’s 

membership roster. The TSA considers the identities of federal air 

marshals to be sensitive security information (“SSI”), and an FBI 

investigation ensued. 

During the course of the investigation, Connors told investigators 

that it was possible that her personal computer, which contained the 

ATSMAP membership roster, might have been hacked, or that her 

husband might have accessed and released the information. The 

investigation ultimately determined that neither Connors nor any 

computer in her home was the source of the released information. 

Nevertheless, in mid-September 2013, Connors received a Notice of 
16-1680-cv 

Connors v. United States of America et al. 

4 

Proposed Removal charging her with “lack of candor” in the 

investigation and “failure to safeguard SSI.” Two months later, the 

Deputy Federal Security Director at Newark Liberty International 

Airport rendered a decision upholding the proposed penalty of removal 

from federal service, and Connors was fired. She filed an 

administrative appeal to the Department of Homeland Security Office 

of Professional Responsibility Appellate Board (“OPR”). The OPR 

overruled the Deputy Federal Security Director’s decision with respect 

to the charge of lack of candor in the investigation, but sustained the 

decision with respect to the charge of failure to safeguard SSI, and 

upheld Connors’s termination. 

Connors then filed the present action in the United States District 

Court for the Eastern District of New York, seeking judicial review of 

her termination under the APA. The Defendants moved to dismiss for 

lack of subject matter jurisdiction. The district court (Vitaliano, J.) 

granted the motion. This timely appeal followed. 

II. Standard of Review

In reviewing a dismissal for lack of subject matter jurisdiction, we 

examine de novo the district court’s legal conclusions. Conyers, 558 

F.3d at 143. 

III. Analysis

APA review of an administrative action is presumptively available, 

but that presumption yields to statutory provisions explicitly 

precluding judicial review of administrative action or committing 

administrative action to agency discretion. Id. at 143. When it is 

argued that such a statutory provision precludes APA review, we 

examine that provision with great care, reading it to provide an 

exception to APA review only when we are satisfied that it constitutes 

clear and convincing evidence of congressional intent to do so. Id. 

The relevant portion of the ATSA provides: 

[N]otwithstanding 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 
16-1680-cv 

Connors v. United States of America et al. 

5 

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. 

In Conyers, 558 F.3d at 144–48, we held that this provision 

precluded APA review of a claim by an individual who applied for a 

TSA security screening job and was rejected. There, we considered 

carefully the text, structure, and legislative history of the ATSA, and 

we need not repeat ourselves here. See id. at 145–47. We concluded 

that the statute committed hiring decisions regarding TSA screeners to 

the agency’s discretion, and thus removed review of such decisions 

from the scope of the APA. See id. at 146–48. 

We limited our holding, however, to the particular employment 

decision then at issue, and we specifically declined to hold that APA 

review was unavailable for all personnel decisions involving TSA 

screeners: 

We need not decide whether APA review is unavailable with respect to 

all of the Administrator’s decisions regarding screener employment. 

We conclude here only that the specific “agency action” complained of 

by Conyers, namely, the Administrator’s decision not to utilize the 

FAA’s personnel management system in deciding whom to “employ” or 

“appoint” as a security screener, “is committed to agency discretion by” 

ATSA Section 111(d) and, thus, is not reviewable under the APA, 5 

U.S.C. § 701(a). 

Id. The matter now before us concerns a firing decision rather than a 

hiring decision and is thus not strictly controlled by Conyers. 

The ATSA, by its clear terms, grants the TSA extremely broad 

authority over personnel matters. See id. at 145 (“Section 111(d) 

speaks broadly of the administrator’s authority . . . .”). In particular, 

the TSA is empowered to “terminate” “individuals” who “carry out the 

screening functions” of the TSA “notwithstanding any other provision 

of law.” 49 U.S.C. §44935 note. Accordingly, we now hold that the 
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Connors v. United States of America et al. 

6 

TSA’s decision to terminate Connors’s employment is not subject to 

APA review. This holding follows naturally and ineluctably from the 

reasoning we set forth in Conyers. 

The Plaintiff attempts to distinguish Conyers by characterizing the 

hiring decision in Conyers, as contrasted with the firing decision here, 

as a decision with public policy implications. This is not a meaningful 

distinction. First, it assumes, incorrectly, that there are no policy 

implications involved in the termination of a public employee’s job. 

Second, Connors has pointed to nothing in the text, structure, or 

history of the ATSA suggesting that it should be read to grant the TSA 

discretion concerning only decisions with policy implications. To the 

contrary, the ATSA’s grant of TSA discretion over screening personnel 

employment matters is sweeping in its breadth. See id. at 146 (noting 

that the ATSA implicates a “nearly comprehensive list of employmentrelated decisions”). 

In Conyers, we noted a developing consensus in favor of ATSA 

preclusion of judicial action among courts that have considered the 

question in various contexts. See id. at 144–45 (collecting cases). This 

consensus has strengthened since we decided Conyers. See, e.g., Field 

v. Napolitano, 663 F.3d 505 (1st Cir. 2011) (holding that the ATSA 

precluded a TSA security screener from bringing suit under the 

Rehabilitation Act, 29 U.S.C. § 791 et seq.); Joren v. Napolitano, 633 

F.3d 1144 (7th Cir. 2011) (per curiam) (same). 

Consistent with this consensus, we conclude that the district court 

correctly determined that it lacked subject matter jurisdiction over this 

matter, and properly dismissed it. Its judgment is affirmed.