Anna Galaza v. Alejandro Mayorkas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANNA GALAZA, No. 21-15464

Plaintiff-Appellant, D.C. No. 2:16-cv-

00878-RFB-DJA

v.

ALEJANDRO MAYORKAS,* OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Nevada

Richard F. Boulware II, District Judge, Presiding

Argued and Submitted September 9, 2022

Pasadena, California

Filed February 28, 2023

Before: Johnnie B. Rawlinson, Bridget S. Bade, and

Daniel A. Bress, Circuit Judges.

Per Curiam Opinion

*

Alejandro Mayorkas is substituted for his predecessor Chad F. Wolf,

former Acting Secretary of the Department of Homeland Security. See

Fed. R. App. P. 43(c)(2).

2 GALAZA V. MAYORKAS

SUMMARY **

Aviation and Transportation Security Act

The panel affirmed the district court’s order dismissing,

as preempted by the Aviation and Transportation Security

Act (“ATSA”), Anna Galaza’s claim against the

Transportation Security Administration (“TSA”) alleging

discrimination in violation of the Rehabilitation Act.

Galaza alleged that she suffered two injuries while

working for the TSA as a Transportation Security Officer,

also known as a screener. Galaza’s doctor cleared her to

return to a permanent limited-duty position. After

undergoing vocational rehabilitation, Galaza remained

unable to fulfill the duties of a TSA screener and was

terminated from employment with the TSA.

The ASTA establishes basic qualifications for the

position of ATSA security screener, and vests the

Administrator of the TSA with the authority to determine

additional employment standards and training for security

screeners. The Rehabilitation Act protects qualified

individuals with disabilities from being subjected to

discrimination under activity conducted by any Executive

agency because of his or her disability. 29 U.S.C. § 794(a).

The panel joined the First, Fifth, Seventh, and Eleventh

Circuits in holding that the ATSA, as applicable to security

screeners, preempts the Rehabilitation Act. The ATSA

authorized the Administrator of the TSA to set aside

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GALAZA V. MAYORKAS 3

employment standards for security screeners as necessary to

fulfill the TSA’s screening functions under the ATSA. A

statutory note to the ATSA provides that the Administrator

is authorized to do so notwithstanding any other provision of

law. The panel held that use of the phrase “notwithstanding

any other provision of law” reflected legislative intent to

preempt the provisions of the Rehabilitation Act.

Galaza contended that preemption was unnecessary

because the two statutes could be harmonized, and

preemption was foreclosed by explicit language in

the Whistleblower Protection Act (“WPEA”). The panel

declined to address the issue whether the WPEA made the

Rehabilitation Act generally applicable to security screeners

because this issue was not raised in the district court. In

addition, Galaza was terminated over two years before the

WPEA took effect, and the WPEA did not apply

retroactively.

COUNSEL

Jenny Foley (argued), HKM Employment Attorneys LLP,

Las Vegas, Nevada; Philip J. Trenchak and Victoria C.

Mullins, Mullins & Trenchak, Las Vegas, Nevada; for

Plaintiff-Appellant.

Holly Ann Vance (argued), Assistant United States

Attorney; Elizabeth O. White, Appellate Chief; Christopher

Chiou, Acting United States Attorney; Office of the United

States Attorney; Reno, Nevada; for Defendant-Appellee.

4 GALAZA V. MAYORKAS

OPINION

PER CURIAM:

The Aviation and Transportation Security Act (ATSA)

authorizes the Administrator of the Transportation Security

Administration (TSA) to set employment standards for

security screeners as necessary to fulfill the TSA’s screening

functions under the ATSA. See 49 U.S.C. § 44935(a), (f).

Because the Administrator is authorized to do so

“[n]otwithstanding any other provision of law[,]” we join the

First, Fifth, Seventh, and Eleventh Circuits in holding that

the ATSA preempts the Rehabilitation Act, 29 U.S.C.

§§ 791, 794, as applicable to security screeners. See Field v.

Napolitano, 663 F.3d 505, 512 (1st Cir. 2011); Kaswatuka v.

U.S. Dep’t of Homeland Sec., 7 F.4th 327, 330 (5th Cir.

2021); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir.

2011) (per curiam); Castro v. Sec’y of Homeland Sec., 472

F.3d 1334, 1337 (11th Cir. 2006) (per curiam). We have

jurisdiction to review Galaza’s appeal under 28 U.S.C.

§ 1291 and AFFIRM the district court’s dismissal of the

complaint.

I. Background

Galaza brought an action against the TSA, alleging

discrimination in violation of the Rehabilitation Act when

she was terminated from her limited-duty position.

According to the allegations in Galaza’s complaint, 1 she

suffered two injuries while working for the TSA, as a

1

Because Galaza’s claim was dismissed pursuant to Federal Rule of

Civil Procedure 12(b)(6), we presume the truth of the allegations in her

complaint. See Produce Pay Inc. v. Izguerra Produce, Inc., 39 F.4th

1158, 1161 (9th Cir. 2022).

GALAZA V. MAYORKAS 5

Transportation Security Officer, also known as a screener.

Following her second injury, Galaza was absent from work

until her doctor cleared her to return to a permanent limited-

duty position. After undergoing vocational rehabilitation,

Galaza remained unable to fulfill the duties of a TSA

screener, and was terminated from employment with the

TSA. Galaza alleged that she was terminated due to her

disability, and despite the availability of limited duty

positions that she could fill such as “exit lane monitor,”

“secondary ticket checker,” or “bypass door monitor.”

Galaza filed a complaint with TSA’s Equal Employment

Opportunity Office and subsequently filed an action in

federal district court. The district court dismissed all of

Galaza’s claims, including her Rehabilitation Act claim.

The district court reasoned that the ATSA preempted

application of the Rehabilitation Act to TSA screeners.

We dismissed Galaza’s first appeal because she

voluntarily dismissed the claims in her amended complaint

without the district court’s involvement and therefore did not

effectuate a final appealable judgment. See Galaza v. Wolf,

954 F.3d 1267, 1272 (9th Cir. 2020). Galaza later obtained

a final appealable judgment from the district court pursuant

to an order dismissing her Rehabilitation Act claim,

acknowledging the voluntary dismissal of her remaining

claims, and granting her motion for a final order. Galaza

now appeals the dismissal of her Rehabilitation Act claim

for the second time.

II. Discussion

“We review de novo a district court’s dismissal under

Rule 12(b)(1) or Rule 12(b)(6). . . .” Sabra v. Maricopa

Cnty. Cmty. Coll. Dist., 44 F.4th 867, 878 (9th Cir. 2022)

(citation omitted). “When interpreting statutes, the court

6 GALAZA V. MAYORKAS

gives effect to the unambiguous words Congress actually

used. . . .” GCIU-Emp’r Ret. Fund v. MNG Enters., Inc., 51

F.4th 1092, 1097 (9th Cir. 2022) (citation and alteration

omitted). “[W]e are not at liberty to override congressional

intent and read a statutory term contrary to its plain

meaning.” Animal Legal Def. Fund v. U.S. Dep’t of Agric.,

933 F.3d 1088, 1095 (9th Cir. 2019).

Following the September 11, 2001 terrorist attacks,

Congress enacted the ATSA, which “created a new agency,

the TSA, with sweeping responsibility for airport security

screening, including setting the qualifications, conditions,

and standards of employment for airport security screeners.”

Field, 663 F.3d at 508 (citation omitted). Congress

specifically “vested the TSA Administrator with the

authority to carry out the provisions of the ATSA,” including

“wide latitude to determine the terms of employment of

screeners.” Id. (citation and footnote reference omitted).

The ATSA establishes basic qualifications for the position

of ATSA security screener, including physical requirements,

and states that “[n]otwithstanding any other provision of

law, an individual may not be deployed as a security screener

unless that individual meets” those requirements. 49 U.S.C.

§ 44935(f) (emphasis added). The ATSA also vests the

Administrator of the TSA with the authority to determine

additional employment standards and training for security

screeners. See id. at § 44935(e)(2). The Act states that

“[n]otwithstanding any other provision of law, those

standards shall require, at a minimum, an individual . . . to

meet such other qualifications as the Administrator may

establish.” Id. at § 44935(e)(2)(A) (emphasis added).

Finally, a statutory note to the ATSA provides that,

GALAZA V. MAYORKAS 7

[N]otwithstanding any other provision of

law, the [Administrator of the Transportation

Security Administration] 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 [Administrator]

determines to be necessary to carry out the

screening functions [required by the Act].

Aviation and Transportation Safety Act, PL 107-71,

November 19, 2001, 115 Stat 597, note to 49 U.S.C. § 44935

(emphasis added) (second alteration in the original).

The Rehabilitation Act protects qualified individuals

with disabilities from “be[ing] excluded from the

participation in, . . . denied the benefits of, or . . . subjected

to discrimination . . . under any program or activity

conducted by any Executive agency . . .” solely “by reason

of his or her disability.” 29 U.S.C. § 794(a); see also 29

U.S.C. § 791.

The Federal Circuit was the first circuit court to reason

that “[t]he language ‘notwithstanding any other provision of

law’ [in the ATSA] signals that” the Administrator’s

discretion to set employment standards “override[s] more

general conflicting statutory provisions to the extent that

they would apply to screeners.” Conyers v. Merit Sys. Prot.

Bd., 388 F.3d 1380, 1382 (Fed. Cir. 2004). Two years later,

the Eleventh Circuit specifically held that the ATSA

preempts application of the Rehabilitation Act to security

screeners. See Castro, 472 F.3d at 1337.

The Eleventh Circuit affirmed the dismissal of Castro’s

action alleging that the TSA violated the Rehabilitation Act

8 GALAZA V. MAYORKAS

when rejecting Castro’s application for employment based

on his history of “physiologic non-epileptic seizures.” Id. at

1335. Relying on the “notwithstanding any other provisions

of law” language in the statutory note to the ATSA, the court

reasoned that “[t]he plain language of the ATSA indicates

that TSA need not take the requirements of the

Rehabilitation Act into account when formulating hiring

standards for screeners.” Id. at 1337.

In Joren, the Seventh Circuit also relied on the language

from the statutory note to “conclude that the plain language

of the ATSA preempts application of the Rehabilitation Act

to security screeners.” 633 F.3d at 1146 (citations omitted).

The Seventh Circuit noted that 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.” Id.

(citation omitted).

The First Circuit reached the same conclusion in Field.

See 663 F.3d at 511. In addition to discussing the plain

language of the ATSA and the Supreme Court’s treatment of

“notwithstanding” clauses, the court explained that the

congressional history of the ATSA evinces Congress’s intent

to preclude suits against the TSA under the Rehabilitation

Act. See id. at 512 (noting that Congress considered making

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

including the Rehabilitation Act, applicable to all screeners

hired” under the ATSA, but ultimately rejected that version

of the legislation) (citation and footnote reference omitted).

The First Circuit emphasized that “[e]very circuit to address

the issue has agreed that the language of the ATSA plainly

precludes security screeners from bringing suit under certain

of the federal employment statutes incorporated under Title

GALAZA V. MAYORKAS 9

5 of the United States Code, including the Rehabilitation

Act.” Id. (citations omitted).

The Fifth Circuit is the most recent circuit to hold that

the ATSA preempts the Rehabilitation Act, and it also relied

on the “notwithstanding” clauses in concluding that

“sections of the ATSA conflict with the Rehabilitation Act,”

thereby triggering the “override” function of the

“notwithstanding” clauses. Kaswatuka, 7 F.4th at 330.

The ATSA’s use of “notwithstanding any other

provision of law” with regard to the Administrator’s

authority to set employment standards for security screeners

was dispositive in each Circuit’s analysis. We are persuaded

by this unanimous reasoning from our sister Circuits that use

of the phrase “notwithstanding any other provision of law”

reflects legislative intent to preempt the provisions of the

Rehabilitation Act. See Cisneros v. Alpine Ridge Grp., 508

U.S. 10, 18 (1993) (“[I]n construing statutes, the use of such

a ‘notwithstanding’ clause clearly signals the drafter’s

intention that the provisions of the ‘notwithstanding’ section

override conflicting provisions of any other section.”)

(citation omitted). Accordingly, the decision to terminate

Galaza was not a violation of the Rehabilitation Act. See

Kaswatuka, 7 F.4th at 330.

Despite the consensus of the circuit courts that have

addressed this issue, Galaza continues to maintain that

preemption of the Rehabilitation Act is contrary to

congressional intent. Galaza also contends that preemption

is unnecessary because the two statutes can be harmonized,

and that preemption is foreclosed by explicit language in the

Whistleblower Protection Act (WPEA) including TSA

screeners within the protection of the Rehabilitation Act.

10 GALAZA V. MAYORKAS

Galaza’s contention that preemption of the

Rehabilitation Act is inconsistent with congressional intent

lacks merit in light of the plain language of the

“notwithstanding” clauses in the statute. See Animal Legal

Def. Fund, 933 F.3d at 1095 (“[W]e are not at liberty to

override congressional intent and read a statutory term

contrary to its plain meaning.”); see also Field, 663 F.3d at

512 (describing the language of the ATSA as “plain[]”). The

two statutes cannot be harmonized because the general

provisions of the Rehabilitation Act conflict with the plain

language of the “notwithstanding” clauses overriding those

provisions “to the extent that they would apply to screeners.”

Conyers, 388 F.3d at 1382.

We decline to address the issue of whether the WPEA

made the Rehabilitation Act generally applicable to security

screeners because this issue was not raised in the district

court. See Orr v. Plumb, 884 F.3d 923, 932 (9th Cir. 2018)

(“The usual rule is that arguments raised for the first time on

appeal . . . are deemed forfeited. . . .”) (citation omitted). In

addition, Galaza was terminated “on or about May 5, 2010,”

over two years before the WPEA took effect, and the WPEA

does not apply retroactively. See Whistleblower Protection

Enhancement Act of 2012, PL 112-199, November 27, 2012,

126 Stat 1465, 1475; see also Hicks v. Merit Sys. Prot. Bd.,

819 F.3d 1318, 1321 (Fed. Cir. 2016) (“Congress

specifically provided . . . that the WPEA would become

effective on December 27, 2012 . . .”) (citations omitted);

Talaie v. Wells Fargo Bank, NA, 808 F.3d 410, 411-12 (9th

Cir. 2015) (“The Supreme Court has held that the

presumption against retroactive legislation is deeply rooted

in our jurisprudence, and can only be overcome where

Congress expresses a clear and unambiguous intent to do so.

. . .”) (citation and internal quotation marks omitted).

GALAZA V. MAYORKAS 11

III. Conclusion

We AFFIRM the district court’s dismissal of Galaza’s

Rehabilitation Act claim as preempted by the ATSA.