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Galaza v. Mayorkas (9th Cir. 21-15464 2/28/23) Aviation and Transportation Security Act | Preemption over Rehabilitation Act

Uniformed TSA officer smiles at passengersThe 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 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.