Petition for Writ of Certiorari — Daryl B. Kiddey, Petitioner v. Transportation Security Administration

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-2150

Daryl B. Kiddey

Plaintiff - Appellant

v.

Transportation Security Administration

Defendant - Appellee

Appeal from U.S. District Court for the Southern District of Iowa - Central

(4:22-cv-00341 -SMR)

JUDGMENT

Before BENTON, SHEPHERD, and KOBES, Circuit Judges.

The court has carefully reviewed the original file of the United States District Court and

orders that this appeal be dismissed for lack of jurisdiction. Appellant’s motions for leave to

proceed on appeal in forma pauperis are denied as moot.

July 31, 2024

Order Entered at the Direction of the Court:

Acting Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Maureen W. Gomik

Appellate Case: 24-2150

Page: 1

Date Filed: 07/31/2024 Entry ID: 5419064

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

DARYL B. KIDDEY,

) Case No. 4:22-cv-00341-SMR-WPK

)

)

)

Plaintiff,

v.

) ORDER ON DEFENDANT’S MOTION

) TO DISMISS

TRANSPORTATION SECURITY

ADMINISTRATION,

)

)

)

)

Defendant.

Plaintiff Daryl B. Kiddey was terminated from his position as a Transportation Security

Officer at the Des Moines Airport shortly after he began his employment with Defendant. Plaintiff

filed this suit against Defendant Transportation Security Administration (“TSA”), alleging

employment discrimination under the Americans with Disabilities Act (“ADA”). [ECF No. 1].

Defendant filed a Motion to Dismiss. [ECF No. 11]. For the discussed reasons below, Defendant’s

Motion is GRANTED.

I.

BACKGROUND

A. Factual Background

On October 14, 2018, Kiddey was hired by the TSA and placed on a 2-year trial period to

monitor his performance and conduct. [ECF No. 1-3 at 1]. A TSA Management Directive

provided that during the two-year trial period, an employee may be terminated from their position

if the supervisor determines that the performance or conduct is unacceptable. Id. Between October

and November 2018, TSA identified six incidents of poor performance and unprofessional conduct

by Plaintiff. Id. at 1-2. Specifically, TSA claimed he read an ID upside down, did not correctly

process a boarding pass that resulted in a passenger entering the wrong screening line, left his

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station without first obtaining permission to do so or properly securing his station, and violated the

dress code. Id. On November 30, 2018, TSA terminated his employment after multiple failed

attempts to correct his performance and conduct issues. Id. at 2.

B. Procedural Background

On July 9, 2021, Plaintiff contacted an Equal Employment Opportunity (“EEO”)

Counselor, asserting that the TSA discriminated against him because of his attention deficit

hyperactivity disorder (ADHD). Id. at 7. Generally, he was required to contact the EEO Counselor

within 45 days after the date of the alleged discriminatory action. Id. at 6. Over two years passed

since his termination before he contacted the agency. Id. His explanation for the delay was that

he did not have the necessary contact information. EEO closed his case on September 21, 2021. l

Id. at 9.

Plaintiff initially filed this employment discrimination action against the TSA in the United

States District Court for the Northern District of Ohio. [ECF No. 1]. Defendant moved to dismiss

for improper venue. [ECF No. 4], The motion was granted in part and the case was transferred to

this District. [ECF No. 6].

On May 31, 2023, Defendant filed a Motion to Dismiss under Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6), arguing that (1) the Court lacks subject matter jurisdiction over

Plaintiffs claims under the ADA or the Rehabilitation Act, (2) the Court lacks subject matter

jurisdiction over his claims because he failed to exhaust his administrative remedies, and (3) his

complaint fails to state a claim. [ECF No. 11-1]. Plaintiff filed a response. [ECF No. 12], For

the reasons discussed below, the Motion is GRANTED.

l

The pleadings do not state the EEO’s reason for completing his case.

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II.

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GOVERNING LAW

A. Motion to Dismiss for Lack ofSubject Matter Jurisdiction

A court must dismiss a claim for lack of subject-matter jurisdiction. Fed. R. Civ. R

12(b)(1). “Subject matter jurisdiction refers to the court’s power to decide a certain class of cases.”

LeMay v. United States Postal Service, 450 F.3d 797, 799 (8th Cir. 2006) (citing Cont’l Cablevision

of St. Paul, Inc. v. United States Postal Service, 945 F.2d 1434, 1437 (8th Cir. 1991)). To decide

if a claim must be dismissed under Rule 12(b)(1), a court must first “distinguish between a ‘facial

attack’ and a ‘factual attack.’” Branson Label, Inc. v. City ofBranson, Mo., 793 F.3d 910, 914 (8th

Cir. 2015). A “facial attack” on a complaint is restricted to the pleadings and “the non-moving

party receives the same protections as it would defending against a motion brought under

Rule 12(b)(6).” Id. (citation omitted). In other words, the court “must accept all factual allegations

in the pleadings as true and view them in the light most favorable to the nonmoving party.”

Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008). Defendant brings a facial attack on the

Court’s subject-matter jurisdiction.

III.

ANALYSIS

The parties dispute each issue that bears upon the existence of subject-matter jurisdiction:

(1) whether federal agencies are covered by the ADA; (2) whether the Aviation and Transportation

Security Act (“ATSA”) precludes claims by TSA employees brought pursuant to the

Rehabilitation Act; and (3) whether Plaintiff failed to exhaust his administrative remedies.2

2 Because the Court concludes that it does not have subject-matter jurisdiction over this

case, it will not address Defendant’s argument that the complaint also fails to state a claim.

See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007) (holding

that if subject-matter jurisdiction is not present, a federal court may not decide “just a few” legal

or factual questions before dismissing a case).

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The Court concludes that it does not have subject-matter jurisdiction over the claims because

neither statute applies to Plaintiffs position with the TSA.3

A. ADA Application to the Federal Government

Plaintiff brought this employment discrimination suit under the ADA. [ECF No. 1].

Defendant maintains that the ADA does not apply to the federal government, so the Court does

not have subject-matter jurisdiction over such claims. [ECF No. 11-1 at 4],

Title I of the ADA prohibits certain discriminatory actions by employers against employees

and job applicants on the basis of disability. The ADA does not apply to all employers but only

to specified “covered entities.” See 42 U.S.C. § 12111(2) (defining a “covered entity” as “an

employer, employment agency, labor organization, or joint labor-management committee”).

Relevant to this case, the ADA expressly states that Title I discrimination provisions do not include

the federal government. See id. § 1211 l(5)(B)(i) (stating that an “employer” does not include “the

United States, a corporation wholly owned by the government of the United States, or an Indian

tribe”). Because the federal government is not a covered entity under the ADA, claims for

discrimination under the law cannot be brought against the TSA.

B. Rehabilitation Act

Giving a liberal construction to Plaintiffs pro se complaint, the Court will consider

whether his claims for employment discrimination are viable under the Rehabilitation Act.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating that pro se complaints should be “liberally

construed.”). The Rehabilitation Act of 1973, contrasted with the ADA, not only contemplates the

3 Aside from the Court’s conclusion regarding the applicability of the ADA and

Rehabilitation Act, Plaintiff has also failed to satisfy the administrative requirements under either

law. His administrative complaint was initiated years after the permissible timeframe to do so.

The failure to satisfy administrative requirements is an independent basis to dismiss the Complaint.

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federal government as falling within its scope, but it is also the exclusive remedy for a federal

employee who alleges disability-based discrimination. Loos v. Napolitano, 665 F. Supp. 2d 1054,

1057-58 (D. Neb. 2009) (collecting cases). Despite the Rehabilitation Act’s general applicability

to the federal government, Defendant argues Plaintiffs claims must be dismissed because

Congress provided the TSA with broad discretion over its employees under the ATSA.

The relevant portion of the ATSA provides:

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.

49 U.S.C. § 44935 (emphasis added). The United States Court of Appeals for the Eighth Circuit

has not addressed the interaction between federal employment laws and the ATSA’s grant of broad

authority to the TSA on personnel matters. Other Courts of Appeals have confronted the issue and

unanimously determined that the ATSA supersedes the provisions of the Rehabilitation Act as it

relates to TSA employees. The plain language of the statute also supports this conclusion.

Therefore, the Court agrees with Defendant that even if Plaintiff s claims are construed as arising

under the Rehabilitation Act, the ATSA precludes subject-matter jurisdiction over the claims.

In the aftermath of the attacks on September 11, 2001, Congress established the TSA

“to assess and manage threats against air travel.” Air Wisconsin Airlines Corp. v. Hoeper, 571

U.S. 237, 241 (2014). The TSA Administrator was vested with a wide array of functions over air

travel. 49 U.S.C. § 114(d)-(f). Important for this discussion, the Administrator has the sole

authority over screening operations that include “develop[ing] standards for the hiring and

retention of security screening personnel.” Id. § 114(e). “Congress ‘recognize[d] that, in order to

ensure that Federal screeners are able to provide the best security possible, the Secretary must be

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given wide latitude to determine the terms of employment of screeners.’” Field v. Napolitano, 663

F.3d 505, 508 (1st Cir. 2011) (citation omitted).

The “notwithstanding” clause of the ATSA is reflective of this discretion. All other circuits

have interpreted this clause to mean that the TSA has sweeping authority to set its own terms of

employment over its security screeners, and thus not subject to other statutory provisions including

the prohibitions against employment discrimination under the Rehabilitation Act. Conyers v.

Merit Sys. Prot. Bd., 388 F.3d 1380, 1382 (Fed. Cir. 2004); Field, 663 F.3d at 511; 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); Galaza v. Mayorkas, 61 F.4th 669, 671-73 (9th Cir.

2023); Castro v. Secy of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006) (per curiam).

The Court holds that the ATSA precludes applicability of the Rehabilitation Act to TSA security

screeners, thus depriving it of subject-matter jurisdiction to consider Plaintiffs claims under the

law.

IV.

CONCLUSION

The Court does not have subject-matter jurisdiction over Plaintiffs claims. For the reasons

stated above, Defendant’s Motion to Dismiss is GRANTED. The case is DISMISSED.

IT IS SO ORDERED.

Dated this 5th Day of February, 2024.

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STEPHANIE M. ROSE, CHIEF JUDGE

UNITED STATES DISTRICT COURT

6

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 24-2150

Daryl B. Kiddey

Appellant

v.

Transportation Security Administration

Appellee

Appeal from U.S. District Court for the Southern District of Iowa - Central

(4:22-cv-00341-SMR)

ORDER

The petition for rehearing by the panel is denied.

September 30, 2024

Order Entered at the Direction of the Court:

Acting Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Maureen W. Gornik

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y.x iv u 2-

Additional material

from this filing is

available in the

Clerk's Office.