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10-1017 Joren v. Napolitano

Employment
Rehabilitation Act; ATSA

The Aviation and Transportation Security Act preempts application of the Rehabilitation Act to security screeners.

“We now join every other circuit to have considered the question and conclude that the plain language of the ATSA preempts application of the Rehabilitation Act to security screeners. See Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006); Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1383 (Fed. Cir. 2004); see also Conyers v. Rossides, 558 F.3d 137, 144 (2d Cir. 2009). Specifically, the ATSA provides that ‘[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 employment of Federal service for . . . individuals . . . to carry out the screening functions.’ 49 U.S.C. § 44935(f) (codified as a note). The Supreme Court has recognized in other contexts that the use of a ‘notwithstanding’ clause signals Congressional intent to supercede conflicting provisions of any other statute. See Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993). Our sister circuits have applied the Supreme Court’s directive to this provision of the ATSA and concluded that Congress intended to enhance the Secretary’s flexibility in hiring security screeners to allow selection without regard to the prohibitions against disability discrimination in the Rehabilitation Act. See Conyers v. Rossides, 558 F.3d at 144- 45; Castro, 472 F.3d at 1338; Conyers v. Merit Sys. Prot. Bd., 388 F.3d at 1383. We agree with this approach and conclude that the ATSA’s plain language reflects Congress’s intent to preempt the application of the Rehabilitation Act to security screening positions.”

Affirmed.

10-1017 Joren v. Napolitano

Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Per Curiam.

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